G. MALAVIYA, J. ( 1 ) CRIMINAL Appeal No. 2404 of 1988 has been preferred by appellants Nannu alias Nanwa alias Nanu and Mahendra against their conviction and sentence in Sessions Trial No. 144 of 1986, in which convicting them u/s. 302 IPC read with S. 149 IPC the IV Addl. District and Sessions Judge, Ghaziabad has awarded them death sentence. The Additional Session Judge has made usual reference No. 29 of 1988 for confirmation of the death sentence. Criminal Appeal No. 2397 of 1988 has been preferred by Amar Pal and Jaivir appellants against the same judgment in which these persons were also convicted u/s. 302 read with S. 149 I. P. C. and were sentenced to imprisonment for life. All the appellants were further convicted u/s. 452 I. P. C. and were awarded three years R. I. each. The appellant Jaivir was convicted u/s. 147 I. P. C and was sentenced to six months R. I. The appellant Nannu alias Nanwa alias Nanu, Mahendra and Amar Pal were further convicted u/s. 148 I. P. C. and were sentenced to one years R. I. each. All the sentences were directed to run concurrently However, one Indrajeet was also tried along with the appellants in the said Sessions Trial but he was acquired the charges levelled against him. ( 2 ) THE F. I. R. of the incident in question indicates that on the night between 19th and 20/10/1985, an incident occurred in the house of Satya Prakash, the informant of this case, in village Khairpur, Police Station Pilakhua, District Ghaziabad. On the date and the time of the incident Satya Prakash was sleeping in his house in the verandah. There was an electric light burning in the verandah. Wife of Satya Prakash, Smt. Kusum and his two daughters Seema and Shweta were sleeping in the room adjoining the verandah, the door of which were open. At about 11-30 p. m. about 7 or 8 accused persons entered the house. On some noise Satya Prakash and his wife got up. Satya Prakash asked who they were? Whereupon two persons caught hold of Satya Prakash and others caught hold of his wife Kusum. At about 11-30 p. m. about 7 or 8 accused persons entered the house. On some noise Satya Prakash and his wife got up. Satya Prakash asked who they were? Whereupon two persons caught hold of Satya Prakash and others caught hold of his wife Kusum. The accused persons then said that they would teach him the lesson for the enmity and would annihilate the entire family before his eyes so that he may face the show torture of the annihilation of his family till his death. Thereafter the accused persons started striking on the neck of the wife and daughters of Satya Prakash with knife. On the shrieks of the victims as also Satya Prakash, his son Avaneesh Kumar, who was sleeping near the window in front of the said room in the verandah, also shouted for help and tried to run away. Immediately thereafter two accused chased Avaneesh Kumar by saying that son of Satya Prakash was trying to escape and he should also be killed. Simultaneously one of the accused attacked on Avaneesh Kumar with a Farsa but Avaneesh Kumar managed to escape, though he had received injuries. On the alarm raised by these persons witnesses arrived. The miscreants fired a shot in the air and left. Out of the miscreants, Satya Prakash and his son Avaneesh Kumar and some other witnesses, recognised Amar Pal, Nannu alias Nanwa alias Nanu, Jaiveer and Mahendra appellants and Indrajeet in the light of the bulb and the torches. So far as the other persons were concerned their names and the addresses were not known but they could be recognised. The dead bodies of the wife and two daughters of the informant were lying in the room of the informant, who had taken his son Avaneesh Kumar to the police station, where the report was lodged. ( 3 ) AFTER the said incident Satya Prakash while taking his son along with him got an FIR of the incident written by Gyan Prakash Sharma, which he lodged at police station Pilakhua on 20-10-85 at1-15 a. m. The distance of the police station from the place of incident was 4 Kilo Metres. ( 4 ) AFTER the FIR has been registered at police station by Head Constable Mangoo Singh Tyagi P. W. 10, the investigation was taken up by P. W. 8 Badri Vishal Pandey, Inspector-in-charge of police station Pilakhua. ( 4 ) AFTER the FIR has been registered at police station by Head Constable Mangoo Singh Tyagi P. W. 10, the investigation was taken up by P. W. 8 Badri Vishal Pandey, Inspector-in-charge of police station Pilakhua. He deputed S. I. Vijai Swarup Yadev P. W. 5 to proceed to the place of the incident and prepare the inquest memo etc. , Consequently Vijai Swarup Yadav went to the place of the incident, where after conducting the necessary formalities, he prepared inquest report of Smt. Kusum Late, Km. Seema and K. Sunita. He also made other recoveries from the place of the incident and prepared their recovery memos which also included three letters (Exts. 1, 2 and 3) which were handed over to him by the first informant Satya Prakash and which the prosecution claimed to be in the handwriting of appellant Mahendra. Thereafter, the Investigating Officer completed the other formalities including recovery of certain articles etc. for which he prepared necessary memos. The Investigating Officer also recorded the statement of Satya Prakash, the informant, his son Avaneesh Kumar as also of Om Prakash and Hari Prakash. After inspecting the spot he prepared the site-plan at the pointing out of the said witnesses. He arrested accused Nanwa, Mahendra and Amar Pal same day in the evening at 6 p. m. from the tube-well of Shibba Jat. He interrogated the accused persons. Mahendra accused offered to get his blood-stained clothes recovered. Consequently he took Mahendra along with S. I. Lavkush Yadav and other persons in a Jeep. Mahendra was directing the way and asked their vehicle to be stopped at the tri. junction of Dahiya, Sairpur and Pilakhua. From there accused Mahendra led the party on Dahiya Road and after going about 6 or 7 steps he got blood-stained pant and shirt recovered from the shrubs Iying between sugarcane field of Karmvir or village Kharapur and the road. These articles were recovered on the pointing out of accused Mahendra and its recovery memo (Ext. Ka-26) was prepared on the spot. After sealing the said articles Mahendra accused had said that he had worn these clothes at the time of the incident. The Investigating Officer had also arrested Indrajeet accused on 22-10-85 at 8-30 p. m. from village Nijampur. He also arrested accused Jaivir on 30-10-85 at 8-45 p. m. from village Achheja. Ka-26) was prepared on the spot. After sealing the said articles Mahendra accused had said that he had worn these clothes at the time of the incident. The Investigating Officer had also arrested Indrajeet accused on 22-10-85 at 8-30 p. m. from village Nijampur. He also arrested accused Jaivir on 30-10-85 at 8-45 p. m. from village Achheja. The Investigating Officer also made an application to the Magistrate for getting the specimen hand writing of accused Mahendra. Thereafter, P. W. 9 Sri S. K. S. Yadav, Munsif Magistrate, got the specimen hand-writing of accused Mahendra taken on 16-11-85 in his presence, inasmuch as Mahendra accused copies down the contents of letters Exts. 1, 2 and 3 in his own writing, as per the statement of P. W. 9, Sri S. K. S. Yadav, the Munsif Magistrate, the accused had willingly given his specimen hand-writing which were marked by him as Exts. Ka-35 to 340 and Exts. Ka-47 to 50. Thereafter, the recovered letters Exts. 1, 2 and 3, purported to be the letters send by accused Mahendra in pseudo names were sent for comparison to the hand-writing expert. They were examined by P. W. 7, B. Rai, the Government Expert, Forensic Science Laboratory, U. P. Lucknow. He submitted his report after comparing the disputed writing with the specimen writing (Ext. Ka-26) according to which he found that the two writings were in the handwriting of the same person. He had also deposed that his opinion was also confirmed by another hand-writing expert Sri S. P. Misra, who had put his signature on the report by way of showing his agreement. 4a. The post-mortem examination on the body of Kusum Lata, Suneeta alias Sullo and Seema was conducted by Dr. R. L. Saraswat (P. W. 3) on 20-10-85 at 4-15 p. m. , 3-50 p. m. and 3-30 p. m. respectively. The Doctor found the following injuries on the person of Kusum Lata : ante Mortem injuries :1. Punctured wound (elleptical in shape) B/l clean cut, margins transversely on the middle front with Rt. side of neck 2. 5 cm x 1 cm x 2. 5 cm deep cut on the both carotid (Rt. internals external) end the trachea. 2. Punctured wound, ellipitical in shape with B/ L clean cut margins transversely, 2 cm x 1/2 cm x 1/2 cm x 1 cm above the injury No. 1. 3. side of neck 2. 5 cm x 1 cm x 2. 5 cm deep cut on the both carotid (Rt. internals external) end the trachea. 2. Punctured wound, ellipitical in shape with B/ L clean cut margins transversely, 2 cm x 1/2 cm x 1/2 cm x 1 cm above the injury No. 1. 3. Punctured wound ellepitically clean cut margins 2 cm x 1/2 cm on the Rt. side neck 1 cm lateral to inj. No. 1. 4. Punctured wound 2 cm x 1/2cm 1/2 cm. on the lt. side neck near the sterno clavicular and Junction. 5. Punctured wound 2 cm x I/2 cm x I/2 cm on the front of Rt. shoulder. The Doctor found the following antemortem injuries on the person of Km. Sullo :1. Incised would transversely on front of neck I cm above the sternoclavical 5 cm x 7 cm x 3 cm x 4 cm deep cutting trachea, both internal and external carotid vessels, direction tapering to Rt. side. 2. Punctured wound 2 cm x 1 cm x 1/2 cm on the left side neck 1 cm lateral to injury No. 1. 3. Punctured wound 2 cm x 1 cm x 1/2 cm on the right side neck 2 cm above the injury No. 1. 4. Punctured wound 2 cm x 1 cm x. 1/2 cm on the Rt. side neck 1 cm above the injury No. 3. The ante-mortem injuries on the person of Seema were as follows : -1. Punctured wound (ellepitical in shape) B/l symmetal margin transversely 2 cm x 1/2 cm x 2 cm deep on the lt. side neck 2 cm lateral to mid line cutting the trachea (middle of neck ). 2. Punctured wound (ellepitical) transversely 2 cm x 1/2cm x 2. 5 cm lateral to inj No. 1 cutting both internal and external carotid lt. side. 3. Punctured wound 1. 5 cm x 1/2 cm x 1/2 cm transversely 1 cm above the inj. No. 2. 4. Punctured wound 1. 5 cm x 1/2 cm x 1/2 cm transversely, 10 cm below the inj. No. 2. Trachea of all the victims had been cut below the injury and the duration of death was found by the Doctor to be about half to one day. According to the Doctor the death of all the victims was on account of shock and haemorrhage due to the ante-mortem injuries. No. 2. Trachea of all the victims had been cut below the injury and the duration of death was found by the Doctor to be about half to one day. According to the Doctor the death of all the victims was on account of shock and haemorrhage due to the ante-mortem injuries. It is also relevant to note that Avanesh Kumar was sent to the Hospital from the police station along with constable No. 586 Hari Mohan Sharma of police station Pilakhua. Dr. S. N. Agrawal (P. W. 4) who was the surgeon of the M. M. G. Hospital Ghaziabad, examined him at 2 p. m. on 20-10-85 and found the following injuries on his person :1. Linear abrasion 8 cm x long on front of left arm 2 cm below left shoulder joint vertically oblique. 2. Linear abrasion on left side chest 3 cm below left collar bone transversely oblique. ( 5 ) AFTER the investigation had been completed the charge-sheet was submitted. The accused denied the charge and claimed to be tried. ( 6 ) THE prosecution in support of its case examined Satya Prakash, the first informant, as P. W. 1, and Avaneesh Kumar injured as P. W. 2 as the witnesses of fact. The prosecution had also tendered in evidence letters Exts. 1, 2 and 3 as also the opinion of the hand-writing expert (Ext. Ka-27) and other documents connected with the case to bring home the charge against the accused persons. Apart from the Investigating Officer and the handwriting expert, the other witnesses examined were more or less of formal character. The accused examined one Naresh Pal D. W. I to demonstrate that he and Indrajeet, the acquitted appellant, about 31/2 years before the date of his deposition were returning to their residences when 4 miscreants tried to rob them. He had a torch with him and on flashing the torch he recognised that one of the miscreants was Amarpal accused. This witness categorically stated that Amarpal and Indrajeet accused were not on friendly terms as in pursuance of the said incident a Misc. Case No. 464 of 1986, State v. Aas Mohammad u/s. 393 IPC and S. 28 Arms Act was registered which was still continuing. A true copy of the said report was marked as Ext. Kha-1 in this case. Case No. 464 of 1986, State v. Aas Mohammad u/s. 393 IPC and S. 28 Arms Act was registered which was still continuing. A true copy of the said report was marked as Ext. Kha-1 in this case. ( 7 ) ON the totality of the evidence the Sessions Judge found the charge against the four accused, whose appeals are before us, made out and accordingly passed the orders of conviction and sentences as has been dealt hereinbefore, whereafter these appeals have been preferred by the appellants. ( 8 ) WE have heard Sri S. P. S. Raghav, learned counsel for the appellants and Sri Kamal Krishna for the appellants and Sri S. P. Tewari, learned counsel for the State in this case and we have gone through the evidence in the case at length. In this case there are two eye-witnesses P. W. 1 Satya Prakash and P. W. 2 Avaneesh Kumar. P. W. 1 Satya Prakash stated that about 3 years prior to his deposition on 29-10-86 he had reached the old Delhi Station about 11 p. m. after completing his duty at D. C. M. The police had arrested one Chander as he had picked some persons pocket. On seeing Satya Prakash, Chander called him and told the police, that Satya Prakash was from his village and the police may verify about him from Satya Prakash. When the police enquired from Satya Prakash about Chander, Satya Prakash told the police that Chander was a bad character, who indulged in this type of work i. e. pick-pocketing and that even all other family members were also bad-characters. The witness said that Amar Pal appellant was the own brother of Chander and Nanwa appellant alias Nanu was the uncle of Chander. According to this witness Jaivir Mahendra and Indrajeet were friends of Amar Pal and Nanwa. This witness further stated that after the said incident at Delhi Railway station two she-buffaloes of his brother Har Prakash had been stolen which were recovered from some person. During investigation the name of Nanu alias Nanwa appellants also came to light and the police arrested him. Nanu was in jail in that connection for quite some time. Since then the accused Nanu and Chander were on highly inimical terms with the said witness. During investigation the name of Nanu alias Nanwa appellants also came to light and the police arrested him. Nanu was in jail in that connection for quite some time. Since then the accused Nanu and Chander were on highly inimical terms with the said witness. It was further stated by him that on 25-5-85 he received a threatening inland letter by post, which was put to the witness and was marked as Ext. 1. This witness further testified that four days prior to the incident giving rise to this case i. e. on 15-10-85 an inland letter was received by his daughter Shashi Sharma who was living in Meerut with one of his relations Jai Bhagwan and where she was getting training in the bal Vibhag (Angan Vari) course. This letter was purported to be sent by Praveen Kumar, nephew of this witness asking Shashi Sharma to come back to her home on the evening of 18th May all alone. However, this letter was not written by Praveen Kumar but name of Praveen Kumar had wrongly been mentioned as the writer of the letter. When Shashi came to this witness after the incident giving rise to this case, she handed over the letter to him which in turn was handed to police. This letter was also put to him and was marked as Ext. 2. The witness also proved a third letter, which was found after the incident outside the house in flower beds and the said letter was marked Ext. 3. The witness went on to say that on the night of 19/10/1985, he was sleeping in his house in verandah where at a short distance his son Avaneesh Kumar was also sleeping. An electric bulb was on in the verandah. The wife Kusum Lata and daughter Seema and Shweta were sleeping inside the room. The door and the windows were open and the light emanating from the bulb in the verandah was going inside the room also. On hearing some noise, as soon as he got up, two persons caught hold of him. He saw 5 persons entering the room in which his wife and daughters were sleeping. Hearing their foot-steps, his wife also got up but the miscreants started striking his wife and daughters with Knives. Nanu and Mahendra had knives, Amar Pal had a farsa and Indrajeet and Jaivir had lathis. He saw 5 persons entering the room in which his wife and daughters were sleeping. Hearing their foot-steps, his wife also got up but the miscreants started striking his wife and daughters with Knives. Nanu and Mahendra had knives, Amar Pal had a farsa and Indrajeet and Jaivir had lathis. The wife and daughters were attacked by the accused holding knives and the remaining accused were just pressing down the victims. The two miscreants, who were holding him down were saying that they would teach him the lesson for keeping enmity with them by eliminating his entire family before his eyes so that he may face the torture of slow death (Jisase tu tarap tarap kar mare ). The two persons who had pressed him down were not known to him. On hearing his shrieks and that of his wife, his son Avaneesh got-up and tried to run-away after raising alarm. Two miscreants from the room then said that the son of this witness was going scot-free and he should also be killed. Thereupon, Amarpal and Indrajeet chased Avaneesh Kumar. Amar Pal struck his Farsa on Avaneesh Kumar. Avaneesh Kumar took to a side with the result that Farsa got struck up in the Neem tree. There was a grappling between Amarpal and Avaneesh Kumar. During this period the three miscreants remained in the room. Avaneesh Kumar also suffered injuries. On hearing the alarm raised by him and Avaneesh Kumar, Bankey Lal, Om Prakash, Hari Prakash. Anganoo and Sheodan came challenging the miscreants. The miscreants thereupon creating sounds like fire in the air, disappeared. When this witness went inside he found that his wife and daughters were almost taking their last breaths. They subsequently died in the room itself. His daughter Seema was lying on the floor and the blood was lying all around her body. He got an FIR of the incident dictated to his brother Gyan Prakash and took it to the police station, where the same was lodged at police station Pilakhua. Avaneesh Kumar was, thereafter, taken for medical examination where his medical examination was conducted. This witness also said that from the place of the incident two knives, a Gandasa from Neem tree, one Farsa and a pair of gloves along with two empty bottles of liquor and some Biris and cigarettes were recovered. Avaneesh Kumar was, thereafter, taken for medical examination where his medical examination was conducted. This witness also said that from the place of the incident two knives, a Gandasa from Neem tree, one Farsa and a pair of gloves along with two empty bottles of liquor and some Biris and cigarettes were recovered. This witness further stated that on the cot on which his son Avaneesh was sleeping at the time of the occurrence normally his mother used to sleep but on that night she had gone to the house of his brother Har Prakash, where she had stayed in the night. ( 9 ) THIS witness was cross-examined at length. Apart from the fact that in his cross-examination the fact that there was no official electric connection sanctioned to him despite his application and deposit of security for the same, nothing has been elicited in his deposition, which may discredit the prosecution case on any material particular. Learned counsel for the appellants has contended that Satya Prakash was a partisan witness and as such his testimony should not be relied upon. He also stated that in every probability, this witness was not present in his house at the time of the incident as otherwise he would not have been spared and the prosecution story that he was only pinned down to see the murder of his family was just an excuse to show his presence on the spot. Learned counsel also pointed out that there was material omissions of the fact relating to the possession and use of weapons by the miscreants in the F. I. R. which also indicate that this witness had not seen the incident and was trying to improve the prosecution version subsequently. In the end the main emphasis of the learned counsel for the appellants was that since the trial judge had himself disbelieved the presence of his son Avaneesh Kumar on the spot, there was no question of this witness being relied upon and hence, according to the learned Counsel for the appellants, the conviction of the appellants on the sole testimony of P. W. 1 Satya Prakash is not sustainable. ( 10 ) ALTHOUGH we will give our reasons hereafter why we will not agree with the finding of the Sessions Judge that Avaneesh Kumar was not present on the spot and would also accept the testimony of Avaneesh Kumar in support of the prosecution case, for which we shall given our reasons while dealing with his evidence, we also do not find force in the contention of the learned defence counsel that the evidence of this witness should be rejected since he was partisan. There also appears to be no force in the submission of the learned counsel for the appellants that the theory that this witness was not harmed during the incident so that he may die a slow death on account of the murder of his family members in front of his eyes, appears to be otherwise also established by three letters, Exts. 1, 2 and 3, mentioned above. Ext. 1 is the letter which was sent on an inland cover to Satya Prakash and is purported to be signed by Chander i. e. the brother of Amar Pal accused. This letter is dated 25-5-85. The Sessions Judge wrongly seems to have noted that the seal on this letter is not clear. We have examined this letter in presence of the learned counsel for the parties and find that there are two seals on it. A seal on its printed stamp clearly reads 28-5-85. This letter starts by calling bad names to the addressee and its English translation would almost be as follows : -"the time which I was marking has arrived. The fire of revenge which have been simmering till now is now on flames and cannot be put off now. The fire of revenge was thirsty only for your blood. Chander was earlier weak and because of his weakness despite many efforts was earlier unsuccessful in wreaking vengeance. The same Chander has, now become all powerful from every angle and was prepared to wreak vengenance from you now. You son of pig, in case you show this letter to the Police then you will find that its result would be very bad. I would also now see what your Gyani can do on which you place so much reliance. You son of pig, in case you show this letter to the Police then you will find that its result would be very bad. I would also now see what your Gyani can do on which you place so much reliance. Only on one slap I had killed the son of Mangat and your slap at Delhi Station was too big, the result of which I would soon demonstrate. I will now see your cleverness. Since now I have such a power which will break any lattha, I will face you. Now that day is not far away when I will ruin you. I am coming bastard; son of owl; son of pig, I am coming, Alas, May be at Delhi Station, you would not have told Police anything. Enemy of my enemies, Chander". ( 11 ) THE second inland letter Ext. 2 was addressed to Jai Bhagwan Ji, 137-D, Saket, Meerut. This is dated 15-10-85 and bears a very clear seal of Hapur with its date as 16-10-85. It is purported to be written by one Praveen Kumar (the nephew of P. W. 1 Satya Narain ). It says that Avaneesh Kumar was very seriously ill and is not likely to survive, although he was at the home itself (meaning thereby that he was not admitted to the hospital ). It goes on to say that in case Shashi wanted to meet her brother, then she should come home all alone on the evening of 18th as Avaneesh wants to meet her. ( 12 ) THE third letter, Ext. 3, which is just on a blank paper, is addressed to the village people. When translated it would read as follows : -"o" village people, our identity must have been apparent to you by now and if you do not know ask that girl (laundia), who lives in Meerut. Salee (bad name) survived. Village folks, enmity with us proves very costly. If any person in the village raises voice against us he too shall meet the same fate. We had old enmity with these people and therefore, we are going to teach them lesson for the enmity. Ogirl (laundia) you witnessed the result of the truthfulness of your father. He (sale ne) invited enmity from us. If any person in the village raises voice against us he too shall meet the same fate. We had old enmity with these people and therefore, we are going to teach them lesson for the enmity. Ogirl (laundia) you witnessed the result of the truthfulness of your father. He (sale ne) invited enmity from us. Initially (Hal to) to-day none from these would be saved and if some person survived even then you know that they will meet some time the death of dog. For no reason this person (Sale ne) by inviting enmity from us has ruined his house. Village people, we have killed them, we and no power on the earth can face us. Pradhan Ji, if you want to hold the office of Pradhan for some time, hold it with care. Wah Satya Prakash, what certificate have you got for your truthfulness. Now by showing this certificate get a service at the place of the God. There is shortage of such people there. Sale, bastard, inviting enmity from us, chief of us (Apan Ka Sardar)". Thus, perusal of the letter Ext. 1 indicates that earlier also on account of one Mangat inflicting slap on the sender of the letter, Mangats son had been killed. Similarly the very intention to ask Shashi Sharma, daughter of Satya Prakash, to come home in the evening shows that the intention of the sender of the letter was to kill her also as it has come in evidence that neither Avaneesh Kumar was ill on the said date nor was the letter actually sent by Praveen Kumar. Hence, coupled with the fact that from the stage of the FIR itself the prosecution case has been consistent : that the miscreants wanted to torture Satya Prakash throughout his life by committing the murder of his family, was in their mind, once that was the intention of the miscreants, then not inflicting injuries on Satya Prakash was the normal consequence. The challenge to the testimony of this witness for certain omissions in the FIR to the effect that the FIR did not disclose as to which of the miscreants were holding what weapon and what was their specific role also does not render the testimony in Court unreliable as the FIR is not supposed to disclose all the details. The object of the FIR is only to set the machinery of investigation into motion. The object of the FIR is only to set the machinery of investigation into motion. the contention of the learned counsel that this person was not present in the village cannot be accepted inasmuch as in case he was not in the village, but was away, neither the FIR could have been lodged so promptly nor the medical examination of Avaneesh and despatch of the dead bodies for post-mortem-examination after the inquest could be possible. The contention of the learned counsel for the appellants that the FIR was not prepared till the next evening cannot be accepted in view of the fact that the Doctor had put his signature and seal on the copy of the FIR which had been annexed alongwith the papers which were sent for post-mortem-examination. The post-mortem-examination had been conducted on the very next date from 3-15 p. m. onwards. Hence it is obvious that the FIR had accompanied the papers which were sent by the Investigating Officer with the request to get the post-mortem-examination conducted alongwith dead bodies. It has come in evidence that the bodies after the inquest of the victims had been despatched from the village in the morning of 20/10/1985 round 6-30 or 7 a. m. If the FIR had not been lodged by that time, it was impossible that its copy could be sent by that time. Consequently, the contention of the learned- counsel for the appellants that this witness was not present at the scene of the occurrence is not tenable. ( 13 ) IT will also be relevant at this stage to consider the submissions of the learned counsel for the appellants on the point whether Exts. 1, 2 and 3 had been written by Amar Pal accused or not. Whereas the learned Sessions Judge has found Ext. 1 and 2, the inland letters received by post, to be written and sent by Amarpal, he has not placed reliance on letter Ext. 3 as according to him this letter was got prepared by the investigating agency after the incident. The finding of the Sessions Court in this connection may be quoted as under : -"in this connection, it is pertinent to discuss the letter Ext. 3, which according to P. W. 7 is also written by accused Mahendra. According to the prosecution this letter was written by accused Mahendra just before these three murders were committed. The finding of the Sessions Court in this connection may be quoted as under : -"in this connection, it is pertinent to discuss the letter Ext. 3, which according to P. W. 7 is also written by accused Mahendra. According to the prosecution this letter was written by accused Mahendra just before these three murders were committed. This letter was allegedly recovered from the scene of occurrence. I have carefully gone through this letter Ext. 3. The most striking sentence of this letter is "gaon Walo Inkoy Hamney Mara Hai". This sentence indicates that this letter was written after the commission of the crime. Therefore, the recovery of letter Ext. 3 from the scene of occurrence is doubtful and is not consistent with the prosecution case. Therefore, no reliance can be placed upon the letter Ext. 3. It is however, fully proved from Ext. 1 and 2 that the accused persons were out to exterminate the whole family of the complainant". ( 14 ) IT will be seen that the only reason why the Sessions Judge thought that this letter was written after the commission of the crime was the sentence "gaon Wall Inko Kaney Mara Hai". It seems the Sessions Court did not read the entire letter carefully. We have underlined the portion of this letter, the translation of which has been quoted by us earlier. A perusal of that portion clearly indicates that the letter was written before the persons had committed the crime. It is not uncommon that people who want to create terror among the masses leave such notes after committing the gruesome crime. Consequently it is apparent that if at all this letter was written by one of the miscreants and carried by him, he had intended to keep this letter at the scene of the occurrence after committing the crime. It can normally be presumed that if for any reason the miscreants could not achieve their object and commit the crime, they would not have dropped such a letter at the place of the occurrence. It can normally be presumed that if for any reason the miscreants could not achieve their object and commit the crime, they would not have dropped such a letter at the place of the occurrence. Once a letter is taken by miscreants with the object to drop it at the place where the crime has been committed it would be but natural for them to mention in that letter that the crime in question had been committed by them, moreso, if they wanted to forewarn other persons of the locality not to muster courage to stand against them, lest they may also meet the same fate. Our considered opinion, therefore, is that view of the Sessions Judge to treat this letter as being written after the commission of the crime merely on the sentence of this letter "gaon Walo Inko Kamne Mara Hai" is perverse, as such a language could be used in the letter which might have been intended to be dropped at the scene of the crime after the crime had been committed. ( 15 ) LEARNED counsel for the appellants further states that these letters should not be accepted as genuine and should be treated to be fabricated by the prosecuting agency. As mentioned earlier the prosecution case is that these letters were written by Mahendra appellant. His specimen writing had been procured by the Magistrate P. W. 9 S. K. S. Yadava. Thereafter, the letters were compared with the specimen writing by the Expert Sri B. Rai P. W. 7. We have compared the writings ourselves alongwith the evidence of Sri B. Rai, the hand writing expert. Learned counsel for the appellants has not been able to satisfy us that the evidence of Sri B. Rai P. W. 7 is not worthy of acceptance. He has given detailed reasons in his cross-examination why he had come to the conclusion that the letters had been written by the same person whose specimen writing had been sent to him viz. appellant Mahendra. We accept his testimony and have no hesitation to find that the letters in question had been sent by Mahendra accused and Ext. 1 and 2 had been received by post by the addressee before the incident in question and Ext. 3 had been left by the miscreants on the spot after the incident. appellant Mahendra. We accept his testimony and have no hesitation to find that the letters in question had been sent by Mahendra accused and Ext. 1 and 2 had been received by post by the addressee before the incident in question and Ext. 3 had been left by the miscreants on the spot after the incident. ( 16 ) LEARNED counsel for the appellants further contended that obtaining of the specimen writing of appellant Mahendra Pal was illegal. He relied on the Judgment of the Supreme Court in the case, "state of U. P. v. Ram Babu Misra". reported in AIR 1980 SC 791 , 1980 All LJ 350. This was a case where the person whose signature was sought to be taken had objected to the application to furnish the signature and had approached the Courts before giving specimen writing. It was in that back ground that the Supreme Court, confirming the findings of the High Court, had come to the conclusion that u/s. 73 of the Evidence Act, read with S. 5 of the Identification of the Prisoners Act, a prisoner could not be directed to furnish his specimen writing. We had asked the learned counsel for the appellants to show us any case of the Supreme Court or High Court where an experts evidence tendered during the trial had been held to be inadmissible after the specimen writing of an accused had been obtained and sent for comparison by the Court. Learned counsel failed to bring to our notice any a such case. On the other hand the perusal of the constitution Bench judgment in the case of, State of Bombay v. Kothe Kalu, AIR 1961 SC 1808 shows that the evidence so obtained had been approved by the Supreme Court. Consequently the case of State of U. P. v. Ram Babu Misra cannot be deemed to be an authority for the proposition that if the specimen writing has been obtained during the trial and if thereafter, there is conclusive evidence to the effect that one of the incriminating piece of writing was by one of the accused, even then that evidence against the accused could not be treated as admissible. As discussed earlier Ext. 1 and 2 had been received by post bearing postal seals and they had been handed over to the Investigating Officer immediately after the occurrence. The very fact that Ext. As discussed earlier Ext. 1 and 2 had been received by post bearing postal seals and they had been handed over to the Investigating Officer immediately after the occurrence. The very fact that Ext. 3 uses the sentences which are indicative of actions both of future and past also demonstrate that this was a document written in a natural form. If at all the Police had to manufacture this document it would have seen to it that no such sentence as has been written by the Sessions Court for rejecting the document, would have found place in the said letter. We are, therefore, satisfied that Ext. 1, 2 and 3 are the genuine documents which were received by Satya Prakash and his daughters as also found by Satya Prakash immediately after the occurrence at the place of the crime. As a matter of fact once we come to the conclusion that these letters were written by the appellant Mahendra, it is established that he was one of the miscreants, who was present in this crime and that the entire motive for the crime was the fact that Satya Prakash had told the Police at Delhi Station that Chander and his family members were bad characters. Thus, this letter itself lends strong corroboration to the testimony of the eye-witnesses in this case. ( 17 ) LET us now examine the contention of the learned counsel for the appellants that as the trial Court had disbelieved the presence of Avaneesh Kumar at the scene of the incident and as the prosecution had consistently taken the stand that both Avaneesh and Satya Prakash had seen the present incident, the presence of Satya Prakash, thus, should be held to be doubtful. This also requires us to examine the evidence of Avaneesh Kumar and see the reasons why the Sessions Judge did not place reliance on his testimony. Avaneesh Kumar P. W. 2 was a lad of 18 years and was a student as is clear by the endorsement of the Sessions Judge, who had recorded his vocation to be that of a student. Avaneesh Kumar had a mother and three sisters. His presence in his house was, therefore, quite natural. He is also alleged to have suffered injuries in this case. Avaneesh Kumar had a mother and three sisters. His presence in his house was, therefore, quite natural. He is also alleged to have suffered injuries in this case. His medical examination had been conducted at Ghaziabad in the District Hospital in the night of the incident itself at 2 a. m. He had given a graphic description of the entire incident and has corroborated the entire prosecution case as has come out in the evidence of his father Satya Prakash. This witness was also cross-examined at length. The only criticism which the learned counsel for the appellants could level against him about his testimony was that whereas initially the prosecution case was that he had been struck with a Farsa, this witness had stated that he had been injured in the grappling and that he was unable to say as to from which thing or weapon he had received the injuries. As disclosed earlier this witness had received two linear abrasions 2 cm below his left shoulder and 3 cm below his collar bone. Dr. S. N. Agrawal P. W. 4, who had examined him, said that these injuries have been received from any sharp pointed weapon. The case of the defence was that these injuries were self-suffered. Even the learned Sessions Judge appears to have accepted the contention that injuries of Avaneesh Kumar were self-suffered. It will be relevant to quote his finding on this witness, which is as follows : -"the contention of the learned counsel for the defence is that Avnish Kumar P. W. 2 was not at all present there. Now, we have to see and scrutinise whether Avnish was present on the scene of occurrence. Shri Avnish Kumar P. W. 2 has himself deposed that on the night of occurrence his grand mother (Dadi) had gone to sleep in the house of his Tau. Usually, his grand mother used to sleep on the cot on which he was sleeping on the fate-ful night. He has further stated that he was busy with his studies till 10-30 p. m. Thereafter he went to sleep on the cot on which, usually his grand mother used to sleep. A perusal of the site plan Ext. Usually, his grand mother used to sleep on the cot on which he was sleeping on the fate-ful night. He has further stated that he was busy with his studies till 10-30 p. m. Thereafter he went to sleep on the cot on which, usually his grand mother used to sleep. A perusal of the site plan Ext. Ka-30 shows that the complainant Shri Satya Prakash P. W. 1 was sleeping at place J. while Avanish Kumar was sleeping at place K. The distance of the only bulb giving light on the scene of occurrence was the same from both the Points "j and K". According to the prosecution the accused persons did not immediately take care of Avaneesh Kumar (P. W. 2) simply because they though that the complainants mother was sleeping on the cot, referred to above. The object of this crime said to be taking vengeance against Satya Prakash Sharma P. W. 1 with whom the accused persons were annoyed and had sent threatening letter Ext. Ka-1. A letter Ext. 2 was sent to one Shri Jai Bhagwan resident of Meerut with whom the complainants daughter Shashi was living and taking some training. The letter was allegedly written by Shashis cousin Pravin Kumar informing her that her brother Avineesh Kumar was on death bed and she should reach home on 18-10-88. The plan of the accused persons was to finish the entire family of Satya Prakash Sharma P. W. 1 in his presence so that he may repent having spoken ill against Chander at old Delhi Railway Station. It has also come in the statement of P. W. 1 at page 15 that Avineesh Kumar P. W. 2 used to sleep in a room adjacent to the room of murders. As the facts and circumstances stand the presence of Avineesh Kumar P. W. 2 on the scene of occurrence is highly doubtful because his murder would have been the top priority of the accused persons. Once Avineesh Kumar could be finished by the accused persons, the future generation of the complainant P. W. 1 would have finished there. Once the accused were out to wreak vengeance against the complainant they would have taken care of Avaneesh Kumar on the first available opportunity. The place where Avaneesh was sleeping had the maximum light of the bulb hanging nearby. Once the accused were out to wreak vengeance against the complainant they would have taken care of Avaneesh Kumar on the first available opportunity. The place where Avaneesh was sleeping had the maximum light of the bulb hanging nearby. Therefore, there would have been no problem in recognising Avneesh Kumar. The accused persons had known Avneesh Kumar from before. There is another circumstance which points towards the absence of Avneesh Kumar from the scene of occurrence. The I. O. P. W. 8 has also stated that Avneesh Kumar had gone to the Police station. The injuries of Avneesh Kumar had not been entered in the G. D. Normally the injuries of injured persons are entered in the G. D. These factors are strongly against the presence of Avneesh Kumar P. W. 2 on the scene of occurrence. The evidence on record and the circumstances of the case suggest only two conclusions on this point. The first conclusion is that Avneesh Kumar P. W. 2 was not at all on the place of occurrence. The second conclusion is that he was sleeping some where in his house where the accused persons could not immediately locate him. Before being located by the accused persons, he sensed danger to his life and without looking at what actually was happening in his house, he ran away for his life. The statement of P. W. 2 is therefore, of no value to the prosecution". ( 18 ) THE first reason why the learned Sessions Judge did not think it proper to rely on the testimony of Avneesh Kumar was that if he was present then he should have been the first victim. The Sessions Judge thought that there was enough light and there would have been no difficulty for the miscreants to recognise Avneesh Kumar from before. However, what seems to have really created doubt in the mind of the Sessions Judge was the fact that the injuries of Avneesh Kumar had not been entered in the G. D. This conclusion of the Sessions Judge was based merely on the evidence of the Investigating Officer P. W. 8. However, what seems to have really created doubt in the mind of the Sessions Judge was the fact that the injuries of Avneesh Kumar had not been entered in the G. D. This conclusion of the Sessions Judge was based merely on the evidence of the Investigating Officer P. W. 8. We, however, were taken through the G. D. entires alongwith learned counsel for the appellants, and the learned counsel for the appellants conceded that the G. D. did mention the injuries of Avneesh Kumar, Learned counsel for the appellants has also consequently conceded that the finding of the trial Judge on this point about the mentioning of injuries of Avneesh Kumar in G. D. is against the record. We also find that the finding of the Sessions Court that the accused must have recognised Avneesh Kumar is perverse inasnmch as it had very clearly come in evidence that place and cot where Avneesh slept on the date of the incident was normally occupied by his grand mother, who on the date of the incident had gone to her another sons house which was very close to the house of Satya Prakash itself. The incident had taken place towards the end of October. By that time mild cold sets in. The way the crime had been committed clearly indicates that the miscreants knew the normal setting and system of the entire family particularly as regards the place of sleeping etc. It has also been shown in the site-plan that there was one empty cot found inside the room of the incident, which was standing. This minor fact, which has come in the site-plan supports the prosecution case that Avneesh Kumar on that date had slept outside and goes to show that the third cot, which could normally have been occupied by him, was not used on the night of the incident as he by providence happened to sleep outside on the cot where his grand mother used to sleep. Once people after taking liquor, which fact is indicated on account of the recovery of empty liquor bottles from the place of occurrence, enter a room with a pre-conceived notion that they will be able to find all their intending victims inside the room itself, then the possibility of their just ignoring to check with precision as to who was sleeping at the cot outside, where they would have normally presumed the old lady to be sleeping, seems very natural. Although the witness could not say with absolute certainty in the back ground of the commotion in which he suddenly got up that he was sleeping with his face covered, yet we can easily take notice of this fact that at the relevant time people on account of mild cold sleep with their faces at least partially covered to save themselves from mosquito bite. Consequently there was nothing improbable if the miscreants failed to notice this witness outside the room at the out-set. The fact that they could recognise him once he started running away whereafter he suffered injuries, shows that his entire conduct was very natural and makes his presence established on the spot, more so, as he had also suffered injuries which too had been examined the same night within 21/2 hours at a long distance in District Hospital, Ghaziabad. Although the learned counsel for the appellants has argued that his injuries were self-suffered, the same is difficult to believe, as if at all injuries had to be manufactured, they could be manufactured on the person of Satya Prakash also. Moreover, if at all one of the persons had to be shown as an injured witness, it would have been very natural and probable that Satya Prakash would have been shown himself to be the injured person by getting injuries manufactured on him. The entire suggestion that injuries were got inflicted on Avneesh Kumar immediately after the incident in which the mother and the two sisters of this witness had lost their lives and thereafter the injuries were also got examined at Ghaziabad within 21/2 hours is too tall a claim of the defence to be accepted. The entire suggestion that injuries were got inflicted on Avneesh Kumar immediately after the incident in which the mother and the two sisters of this witness had lost their lives and thereafter the injuries were also got examined at Ghaziabad within 21/2 hours is too tall a claim of the defence to be accepted. It was contended by the learned counsel for the appellants that in the normal course injuries of this witness should have been examined at Primary Health Centre, Pilakhua, itself, and the fact that they were shown to be examined at the District Hospital, should leave this Court to draw an inference that in fact he had suffered no injury and the injury-report of Ghaziabad Hospital was fabricated. It is not possible to accept this contention as normally in the night it is only the emergency section of the District Hospital, where immediate medical attention can always be availed. Moreover, a person, who finds his wife and two daughters murdered, would not normally risk the treatment at a comparatively ill-equipped medical centre. The District Hospitals are much better equipped than the Primary Health Centres and in this case the District Hospital was not at a very great distance either. Hence, merely because the injuries were examined at the District Hospital and not at the Primary Health Centre, cannot at all lead us to draw an inference that this witness had not suffered any injury. Learned counsel also argued that medical evidence was inconsistent with the statement of this witness and his assertion that he did not know how the injuries were caused should also indicate that there was no official electric connection in his house. We feel that this argument is also devoid of any substance inasmuch as mention of electric bulb has consistently figured in the F. I. R. and the statements throughout. Merely because official electric connection was not available, it is not possible to hold on that account alone, that there was no light. The Investigating Officer, in the site-plan, has shown the bulb at the place where it was alleged to be burning. We are, therefore, inclined to accept the statements of the witnesses that there was a bulb burning on the spot at the time of the incident. The Investigating Officer, in the site-plan, has shown the bulb at the place where it was alleged to be burning. We are, therefore, inclined to accept the statements of the witnesses that there was a bulb burning on the spot at the time of the incident. So far the statement of the witness stating that he did not know as to which weapon had caused injuries to him is concerned, suffice it to say that in a grappling if a person gets a simple cut injury near his neck or shoulder he may not immediately realise that he had been injured and in any case it may be quite natural that he may not know as to in which manner the said injury had been caused. Learned counsel further contended that Satya Prakash in his report has initially said that Avneesh Kumar had been hit with Farsa. It is not disputed that mention of injuries was made in the F. I. R. and the fact of Farsa being thrown towards Avneesh Kumar was also there. Consequently after finding his son injured if Satya Prakash of his own had said in the F. I. R. that Avneesh Kumar had been hit by Farsa, that cannot render the statement of Avneesh Kumar less reliable in any manner. Facts mentioned in the F. I. R could only be used to confront its maker ant it was not required of Avneesh Kumar to explain how the said fact had been mentioned in the F. I. R. The last point urged by the learned counsel for the appellants to discredit his testimony was that his conduct in running away and not coming inside the room to protect his mother and sisters should indicate that he was not present. It is too difficult a proposition to accept that a person, who is unarmed would enter a room where the miscreants are attacking the other family members with weapons. Such chivalrous actions are found more in fictions than in real life where we find that instinct of self-preservation reigns supreme. Consequently it is not possible to reject the testimony of P. W. 2 Avneesh Kumar on this ground also. We will consequently hold that Avneesh Kumar had sufferend injuries during this incident and he too was the witness of the entire incident and his testimony is worthy of placing full reliance against the accused persons. Consequently it is not possible to reject the testimony of P. W. 2 Avneesh Kumar on this ground also. We will consequently hold that Avneesh Kumar had sufferend injuries during this incident and he too was the witness of the entire incident and his testimony is worthy of placing full reliance against the accused persons. We have no hesitation to hold that the finding of the Sessions Judge rejecting the testimony of Avneesh Kumar is perverse. ( 19 ) THE result is that there is testimony of two eye-witnesses in this case against the accused persons P. W. 1 Satya Prakash and P. W. 2 Avneesh Kumar, whose evidence are fully reliable. They further get due corroboration from the letters Exts. 1, 2 and 3, which are found to be in the writing of accused Mahendra. They also show that the appellants, who were relations or associates of Chander, had motive to commit crime and had executed their plan to eliminate the family of Satya Prakash in a pre-planned manner. Hence the prosecution case against the appellants is fully established. ( 20 ) LEARNED counsel for the appellants then contended that the extreme penalty of death given to appellant Nanu and Mahendra is not justified. His contention is that these persons at the best had acted at the instance of Chander as is indicated by the letters Exts. 1 and 3. It is urged that there is no reference to the second motive of Nanu appellant in the letters. It is further argued by the learned counsel for the appellants that even if the knives may have been inflicted by only a few of the miscreants, the crime committed by all of them was in furtherance of a common object and since death penalty has not been awarded to other appellants, accused Nanu and Mahendra also deserve lesser penalty. We have considered this contention of learned counsel for the appellants and noting the fact that Indrajeet who had also been tried in the Sessions Trial and against whom also some specific part had been assigned having been acquitted by the trial Court and no appeal having been preferred against his acquittal by the prosecution, the ends of justice would be met if the extreme penalty of death awarded to Nanu and Mahendra Appellant is converted to the imprisonment for Life. ( 21 ) ACCORDINGLY Criminal Appeal 2397 of 1988 is dismissed. The conviction and sentences imposed on accused Amar Pal and Jaivir are maintained. They are on bail. They shall be taken into custody forthwith. ( 22 ) SO far as Criminal Appeal No. 2404 of 1988 is concerned the conviction of accused Nanu and Mahendra as recorded by the trial Court under all the sections is maintained. However, the sentence of death imposed on them is modified to the Imprisonment for life under S. 302 read with S. 149 of the Indian Penal Code. Rest of their sentences imposed for other offences are however, maintained. They are in jail. They shall serve out the sentences as has been imposed on them by this Court. ( 23 ) THE reference made by the Sessions Judge for confirmation of the death sentence is rejected. Reference rejected. .