Judgment Naresh Kumar Sinha, J. 1. The tiny village of Baghaura, some 9 Kms. south west of Madanpur Police Station of Aurangabad district, was scene of a carnage on the night of 29th May 1987 which left 26 persons including 6 women and 9 childern dead and a few houses reduced to ashes.25 of the 26 persons killed belonged to one community and 20 of them were of the same family. The magnitude of the crime sent shock wave throughout the country and the village saw the visits in the next few days of Ministers, politicians and cine star. In connection with the incident 74 accused persons were charge-sheeted by the police under sections 147, 148, 302, 307, 324, 380, 411/149 and section 120-B of the Indian penal Code and put on trial before the learned Additional Sessions Judge. Eight of them i. e. Rajaram Yadav A-1, Babu Ram yadav A-2 were convicted u/ss.302/34 and keshwar Yadav @ Ramkeshwar Yadav A-3, jag Narayan, Yadav A-4, Chintarnan Yadav a-5, Brahamdeo Yadav A-6, Chandradeep yadav A-7 and Ram Pravesh Yadav A-8 under Sec.302 of the Indian Penal Code (for short i. P. C. ) and all of them were sentenced to death. They were also convicted under section 436/149 I. P. C. Appellant nos.3 to 8 were further convicted under section 148 I. P. C. no separate sentence was, however, passed against the appellants for the said offences. The rest of the accused, 66 in all, were acquitted of the charges u/ss.302 and 436 both read with section 149 I. P. C. 2. Against the judgment/order dated 30.9.92/4.11.92 passed by the learned Addl. Sessions Judge appellant nos.1 and 2 have preferred Criminal Appeal no.460/92 and appellant nos.3 to 8 Criminal Appeal no.461/92 and the Death Reference no.9 of 1992 has been made by the learned Additional Sessions judge for confirmation of the death sentence. Both the Criminal appeals and the death Reference have been heard together and are being disposed of by this common judgment. 3. Both the Criminal appeals and the death Reference have been heard together and are being disposed of by this common judgment. 3. Bengali Prasad Singh (P. W.25), Inspector of Madanpur p. S. left the police station at 11 p. m. on the date of incident on receiving information that fire had broken out in village Dalalchak and reached baghaura village at 11.40 p. m. throuah dalalchak along with Rajiv Ranjan Singh, probationary Inspector of Police and umeshwar Prasad Sinha (P. W. .21), Assistant inspector of Police and armed forces. Some armed force from police picket had already arrived at the scene of the occurrence P. W.25 found the village on fire and with the help of other armed forces started extinguishing the fire. While giving round he saw a number of dead bodies and happened to meet the informant Raj Ballabh Singh (P. W.13) and recorded his fard beyan at 1 a. m. on 30.5.87. The informant clalmed that he was looking after the tractor of his brother-in-law Byas Singh (deceased) which was driven by Kesho Singh (deed. ). As usual after working for the whole day they had kept the tractor near the house of Lakhan singh (P. W. .19) and were asleep. At about 9.15 p. m. the informant saw large number of persons armed with weapons coming from the south-west and surrounding the village. They started assaulting the Rajputs by entering into their houses in the village. The informant meanwhile fled towards the east and hid himself near the house of bhuiyas and saw the occurrence from there. He saw the Naxlites catching hold of gaya Singh (Decd.) and others near the banyan tree of his house and cut their necks by Fasuli etc. Thereafter they set the house of Rajputs on fire and shouted "we have taken the revenge of Chhechhani carnage". When the miscreants fled away towards the south shouting alogans, the informant returned to the place and saw that the Naxlites had killed his brother-in-law byas Singh and the driver Kesho Ram as also the family members of Sitaram Singh (decd.) and Trivani Singh (RW.4 ). In the light of fire set to the houses the informant identified and named as many as 43 persons including appellants 3, 4, 5, 6 and 7. In the light of fire set to the houses the informant identified and named as many as 43 persons including appellants 3, 4, 5, 6 and 7. The informant clalmed that the Naxlites had taken revenge of Chechhani carnage because they did not kill any person or set any house on fire which did not belong to f. he members of the Rajput community. 4. P. W. .25 after recording the tardbeyan (Ext.10) despatched it to Madanpur P. S. where madanpur P. S. case no.74 dated 20.5.87 u/ss.147, 148, 149, 302, 307, 324, 380, 436 and 120-B I. P. C. and Section 27 of the Arms Act was registered vide formal F. I. R. (Ext.11 ). P. W.25 took charge of 1he investigation of the case. The Superintendent of Police came to Baghaura at 2.30 a. m. and as per his direction he asked the a. S. I. (P. W.21) to prepare the inquest report in respect of 26 deceased of the case. The i.0. seized blood stained earth from near the dead bodies of 24 deceased and [prepared the seizure list (Ext.12) in the (presence of Triveni Singh (RW.4) and Dukhian Paswan (RW.15 ). He also seized 4 blood stained axes from the open field in front of the house of Triveni Singh son of jugeshwar Singh and a blood stained axe from the Aangan of the house of Bilas yadav. The I. O. also seized some other arlicles such as some kerosene oil in a tin, an empty cartridge, a live cartridge and a Parcha thrown in an open field on which "chhechhani massacre special task of police and the government" were written. The I. O. seized the articles in the presence of RWs.4 and 15 and prepared the seizure list (Ext.12/1 ). A list of the 26 deceased persons was prepared in the presence of p. W.4 and Ram Lakhan Singh (RW.19)upon their identification. The A. S. I. (P. W.21)prepared the inquest report in respect of the deceased and all the dead bodies were sent for postmortem examination along with ram Pyare Singh, A. S. I, and an armed force. 5. The I. O. inspected the RO. on 30.5.87 as pointed out by RWs.4, 13 and 19. He described the PO. The A. S. I. (P. W.21)prepared the inquest report in respect of the deceased and all the dead bodies were sent for postmortem examination along with ram Pyare Singh, A. S. I, and an armed force. 5. The I. O. inspected the RO. on 30.5.87 as pointed out by RWs.4, 13 and 19. He described the PO. to be in village eaghaura at a distance of 50 yards south of the village on the south east corner of Koel canal and the brick built pucca female apartment of P. W.4. The l.0. has given detailed description of the different places where the dead bodies were lying as also the location of the structures and the topographical features in and around the po. The I. O. found four houses of Rajputs, eight of Yadavas, four of Dusadhs and two houses such of Pasis and Chamars in vislage Baghaura. The houses of Lakhan singh, Gaya Singh and Sitaram Singh were found completely burnt. Some houses of members of other communities were partially burnt on account of swift wind. The l.0,, prepared a sketch map (Ext.13) of the PO. He also recorded the statement of the informant and other witnesses. The postmortem examinations on the dead bodies were performed on 30.5.87 itself at Aurangabad sadar Hospital by Dr. Ramashish Singh (P. W.7), Dr. Nand Kishore Prasad (P. W.8), Dr. Hanuman Ram (P. W.9), Dr. Chandra Shekhar Prasad singh (P. W.10) and Dr. K. D. P mahaseth (P. W.12) who proved such of the postmortem reports which were in their hand writings and under their signatures. The postmortem reports are Exts.2 to 2/25. The I. O. was taken ill and remained on leave for a week from 31.5.87 to 6.6.87. He took up investigation from 7.6.87 onwards and after completing certain formalities, completed the investigation and submitted charge-sheet against 74 accused persons including the 8 appellants. 6. The defence case is of false implication on account of enmity. Some of the appellants namely appellant nos.1, 3, 4 and 8 took the plea of alibi also and examined p. Ws.1, 5, 6, 7, 8, 9, 10 and 11 in support thereof. The prosecution examined thirty witnesses including the Doctors and police officers. One court witness was examined to prove some material exhibits. Of a number of eye witnesses examined all except p. W.3 did not support the prosecution case and were declared hostile. The prosecution examined thirty witnesses including the Doctors and police officers. One court witness was examined to prove some material exhibits. Of a number of eye witnesses examined all except p. W.3 did not support the prosecution case and were declared hostile. P. W.3 aged 8 years at the time of the occurrence clalmed to have identified the appellants while they were murdering his father, mother and his three sisters and Gaya Singh by hiding himself at a nearby place. The learned Addl. Sessions Judge did not accept the defence plea of false implication or the plea of alibi of some of the appellants and after holding the prosecution case as proved on the basis of the evidence of P. W.3 corroborated to some extent by the evidence of P. W.1, convicted and sentenced the appellants in the manner already mentioned earlier. 7. Sri Rajendra Singh learned Sr. Counsel appearing for the appellants argued that the evidence of the solitary child eye witness Shailendra kumar Singh (P. W.3) was full of infirmities and should have been rejected as unreliable and even othep. Wise in the absence of any corroboration it could not have been made the sole basis by the trial court for convicting the appellants. Sheonandan Mochi (P. W. .1) from whose evidence the trial court had derived corroboration of the evidence of the child witness was described as wholly unreliable. It may be mentioned that P. W.3 was the only eye witness who clalmed to have identified the appellants while they were killing some of the deceased. The informant (P. W.13)who was an eye witness did not support the prosecution case and was declared hostile. P. W.1 also like P. W.13 and 19 did not support the prosecution case as an eye witness and was declared hostile. P. W.1 nontheless corroborated the testimony of the child witness that when he met him on the day following the occurrence he named the appellants as the killers of some of the deceased. 8. There is no serious challenge to the fact that an occurrence took place on the relevant date, time and place in course of which 26 persons were killed and a number of houses set on fire. Othep. Wise also and irrespective of the testimony of any eye writness there is sufficient material on the record by way of objective findings of the 1.0. Othep. Wise also and irrespective of the testimony of any eye writness there is sufficient material on the record by way of objective findings of the 1.0. at the P. O. to prove the alleged occurrence. The I. O. (P. W.25) alongwith a police force and A. S. I. (P. W.21) had reached the village (Baghaura) at 11.40 p. m. As a matter of fact some of the houses in the village were still on fire and the I. O. with the help of the armed force had helped extinguish the fire. He found the dead bodies lying at different places and had given a graphic account in his evidence. Even the Superintendent of Police happened to reach the village at 2.30 a. m. It was on his direction that the i. O. asked the A. S. I. (RW.21) to hold inp. Wquest on the bodies, RW.21 held inquest on the 26 bodies and prepared the inquest reports marked Exts.5 to 5/25. Vijay Kumar singh and Raj Kumar Singh had affixed their signatures as witnesses on the inquest reports marked Exts.5 to 5/10 and witnesses sohrai Rai and Upendra Singh on the inquest reports 5/11 to 5/25. Other details of the inp. Wquest reports including corresponding Ext. Nos. of the postmortem report prepared by the Doctors are given below. 8_140_PatLJR1_1996.htm 9. At this stage it is not necessary to refer to the details of the inquest reports or the postmortem reports. Suffice to say that almost all the deceased died of antmortem injuries caused by sharp cutting weapons and in a few cases even the neck was completely severed from the trunk. Some of the bodies after being cut were found to have sustained severe burn injuries and at least in two cases the bodies were completely burnt beyond recognition. Blood stained earth from near the dead bodies of as many as 24 deceased as also five blood stained axes seized at the P. O. vide seizure list Exts.12 and 12/1 by the I. O. and some other articles were sent to the Forensic Science laboratory for examination. Five Tangis seized were produced in court and marked material Exts. II to II/iv in the evidence of c. W. No.1 Parmatma Pathak. Five Tangis seized were produced in court and marked material Exts. II to II/iv in the evidence of c. W. No.1 Parmatma Pathak. From the report of the Forensic Science Laboratory (Exts.9 and 9/1) blood was detected in the blood stained earth and the axes but the blood detected was too small for corological test. Learned counsel for the appellants has been extremely fair not to challenge this part of the prosectuion case relating to the recovery and seizure of blood stained earth and blood stained Tangi. This is also inherent in the defence case that the appellants were innocent and the prosecution party after the incident had seized the opportunity and falsely implicated them on account of personal enmity. 10. The large scale killing, arson, and loot could not have been perpetrated by one person or a few individuals but only by a large body of men. From among 31 prosecution witnesses examined only RWs.1 and 3 have testified to in the court that they were present at the time of the occurrence, and saw the mob coming to the P. O. village. The informant (PW.13) admitted his signature (Ext.4) appearing on the fardbeyan (Ext.10) wherein he claimed to be an eye witness of the occurrence. He, however, denied that the fardbeyan was recorded at the P. O. on 30.5.87 at 1 a. m. as also the statement contained therein that at about 9.15 p. m. on the night in question he saw a large number of persons who came from the south west and surrounded the village. Sri K. P. Gupta learned counsel appearing for the State referred to the evidence on the record which completely discredited the claim of the informant that he was not at the P. O. when he is supposed to have given his fardbeyan and that he had put his signature (Ext.4) on the fardbeyan not on 30.5.87 but on 31.5.87 after he came from his village on being sent for by the police. This aspect of the case shall be considered later. For the present suffice to say that the informant does not claim to be present at the P. O. and to have seen a large body of persons surrounding the village before the alleged occurrence. This aspect of the case shall be considered later. For the present suffice to say that the informant does not claim to be present at the P. O. and to have seen a large body of persons surrounding the village before the alleged occurrence. P. W.1 who belonged to village Baghaura and used to coach children in the village saw people coming running from the south with gun, torch, spear and Garasa in their hands. While making good his escape he had looked back and had found the village on fire. RW.3 also saw many persons coming running from the south. P. W.4, the uncle of p. W.3, who happened to reach the village early in the morning on 30.5.87 also saw large scale devastation and even saw some of the houses still burning. He also saw the dead bodies including those of his dear and near ones lying at the P. O. Thus on the basis of all these a conclusion can safely be drawn that on the relevant night a large number of persons raided the village, murdered 26 persons including children and women, burnt a few houses and looted a number of articles. It bears repetition to say that the appellants do not dispute the occurrence but only claim that they were not among those who committed the crime and that there was no legal and satisfactory evidence on the record on the basis of which the court below could have convicted them. 11. Since the conviction of the appellants is based on the solitary testimony of shailendra Kumar Singh (aged 8 years) who appeared as P. W.3, all the arguments on behalf of the appellants are directed towards impeaching his credit. If the witness could be shown to be incompetent or wholly unreliable that would be the end of the matter for no amount of corroboration of his evidence would make it acceptable as the basis for supporting the conviction. Another argument advanced in the alternative is that even if RW.3 was found to be reliable, the conviction of the appellants and the death sentences passed against them could not be sustained without any independent corroboration of his testimony as he was a child witness which was missing in the present case. For better appreciation of the criticism being levelled, the evidence of rw.3 needs to be referred to in somewhat greater details. 12. For better appreciation of the criticism being levelled, the evidence of rw.3 needs to be referred to in somewhat greater details. 12. Rw.3 claimed to be present in the village on that fateful night when his father sitaram Singh (decd.), mother and other relation were killed. He was examined in the court on the 20th June, 1989 i. e. two years after the occurrence. He gave his age as 10 years and that happened to be the estimate of his age made by the Presiding Officer of the court. Before his examination-in-chief the Presiding Judge took the usual precaution of testing his ability to understand questions and give their rational answers by putting some questions and had proceeded to examine him only after recording the fact that the witness was competent to depose. The admitted position would be that the witness was 8 years old at the time of the alleged occurrence. He correctly gave the date of occurrence and the time of occurrence as after the night news at 8.45 p. m. he was sitting on a chouki near a tractor in the Khand of Lakhan with his father and driver of the tractor. Many persons came running from the south firing shots whereupon his father, tractor driver and birendra Bhaiya began to run away. He also ran away and witnessed the subsequent events after hiding himself in the Gaushala of Chintaman Yadav (A-5 ). He named baburam Yadav (A-2) and Chandradeep yadav (A-7) as the two persons who cut gaya Chacha (decd.) by means of Tangi. He then named Brahamdeo Yadav (A-6)and one Nagdeo Yadav (since acquitted)for having cut his father with Tangi before he saw some 4 to 5 unknown persons throwing his father into the house of Lakhan singh which had been set on fire. Rajaram yadav (A-1), Keshwar Yadav (A-3), Jagnarain (A-4), Chintaman Yadav (A-5), Brahamdeo yadav (A-6), Chandradeep Yadav (A-7) and pravesh Yadav (A-8) then pulled out his mother (decd), and sister from his house and to have taken them near the Banyan tree. The witness then saw Pravesh Yadav (A-8) cutting the nack and left hand wrist of his mother. A-3 caught hold of Renu Didi (decd.) and Jagnarain Yadav (A-4) cut her with a Tangi. Chintaman Yadav (A-5) cut girantia (decd.) and Rajaram Yadav (A-1)cut Ritwa (decd.) both by means of Tangi. 13. The witness then saw Pravesh Yadav (A-8) cutting the nack and left hand wrist of his mother. A-3 caught hold of Renu Didi (decd.) and Jagnarain Yadav (A-4) cut her with a Tangi. Chintaman Yadav (A-5) cut girantia (decd.) and Rajaram Yadav (A-1)cut Ritwa (decd.) both by means of Tangi. 13. All the miscreants raised slogans and after staying for a while went away towards south. The witness RW.3 then came out from the place of hiding and went to the door of Ramkeshwar Dusadh. He found people fleeing away. The witness along with Ramkeshwar Dusadh, his wife, nephew and others fled away and went to bangara where he spent the whole night. In the morning Shiva Mochi (RW.1) told the witness "let us go I shall reach you to the place of your fathers sister or Kombehri. " on the way on query being made by RW.1, the witness narrated to him what he had seen. Near the gate of Umega mountain a number of persons among whom RW.3 recognised Lakhan RW.19 only were sitting on a tractor and P. W.1. managed to obtain a seat for P. W.3 on the said tractor. The witness claims to have narrated the occur-rence to Lakhan Singh when asked to do so. P. W.3 and Lakhan came back to the village which obviously refers to village baghaura where P. W.3. met his uncle Triveni singh (RW.4 ). When asked about the occurrence he narrated to his uncle what he had seen. His uncle (PW.4) then brought him to aurangabad on a jeep where the postmortem was to be held on the dead bodies carried on a tractor following the jeep. The eldest uncle Ramdin Singh (RW.2) came to the place where the postmortem was being held much later and on his enquiry he narrated the occurrence to him. RW.3 claims to have halted at the place of Kalka uncle in the evening who lived near the Sinha college and to have left for Balihari, his nanihal alongwith his Nana on the following morning. 14. Before referring to the statements made by P. W.3 in his cross-examination, it is convenient to refer to the evidence of sheonandan Mochi alias Shiva Mochi (RW.1) as the learned Addl. Sessions Judge had relied upon his testimony to find corroboration of the evidence of RW.3. RW.1 belongs to the P. O. village where he also coaches children. 14. Before referring to the statements made by P. W.3 in his cross-examination, it is convenient to refer to the evidence of sheonandan Mochi alias Shiva Mochi (RW.1) as the learned Addl. Sessions Judge had relied upon his testimony to find corroboration of the evidence of RW.3. RW.1 belongs to the P. O. village where he also coaches children. On the relevant date at about 9.30 p. m. he was gossiping with ranjeet Kumar under the Banyan tree at the darwaza of Gaya Singh (decd), who was sitting there on a cot. His son Birendra singh (decd), was also there. He saw people coming running from the south with gun, torch, spear and Garasa. RW.1 ran some 20 to 25 feet to the west when he met pravesh Yadav. He went running away to the orchard of Lakhan Pasi (RW.11) where he remained throughout the night. While running towards the orchard he had looked behind and saw a fire having broken out in the Basti. RW.1 claims to have met Ramkeshwar Dusadh and shailendra Singh (RW.3) on his way to madanpur. Ramkeshwar who was taking shailendra Singh with him asked him (P. W.1) to take P. W.3 to some place. RW.1 claims that when he asked RW.3 on the way whether or not he had seen the occurrence, RW.3 told him that Brahamdeo yadav (A-6) and Nagdeo Yadav (since acquitted) had killed his father Sitaram Singh (decd. ). RW.3 also told him that appellants pravesh Yadav, Brahamdeo Yadav, jagnarain Yadav, Rajaram Yadav and chintaman Yadav had killed his mother and sister as also Gaya Singh (decd.) by taking them to the some place under the Banyan tree. P. W.1 claims to have handed over rw.3 to Lakhan Singh P. W.19. The witness recognised Ram Pravesh Yadav (A-8) only and denied to have recognised any one else among the rioters upon which he was declared hostile. 15. The trial court relied on the evidence of RW.3 corroborated by P. W.1 for recording a finding that Gaya Singh (decd.)was murdered by A-2 and 7, Sitaram Singh (decd.) by A-6, wife of Sitaram (decd.) by a-8, Renu Kumari was caught hold of by a-3 and killed by A-4, Giranti Kumari (decd.)by A-5 and Rita Kumari (decd.) by A-1. 15. The trial court relied on the evidence of RW.3 corroborated by P. W.1 for recording a finding that Gaya Singh (decd.)was murdered by A-2 and 7, Sitaram Singh (decd.) by A-6, wife of Sitaram (decd.) by a-8, Renu Kumari was caught hold of by a-3 and killed by A-4, Giranti Kumari (decd.)by A-5 and Rita Kumari (decd.) by A-1. The question is how far the testimony of solitary eye witness with regard to killing of the six deceased persons had been corroborated by the objective findings of the I. O. noted at the time of the inspection of the P. O. and the contents of the inquest reports and the postmortem reports in respect of those deceased. The I. O. (P. W.25) found the bodies of Sumitra Devi w/o Sitaram Singh, renu Kumari, Rita and Manita alias Giranti the three daughters of Sitaram Singh lying near the two unknown dead bodies at a distance of 24 feet south of the Banyan tree and at a distance of 36 feet from the western wall of Gaya Singh. He found the body of Gaya Singh at a distance of 38 feet to the south from the Banyan tree. Thus five of the six bodies of the deceased referred to above were found except that of Sitaram singh. Blood stained earth and four Tangis with blood stains recovered from near the dead bodies or in its vicinity on being sent to the Forensic Science Laboratory had been found to contain blood. 16. The inquest reports were prepared by A. S. I. (RW.21) in between 5 a. m. to 9. a. m. on the following morning of the occurrence, and the autopsies on the dead bodies were conducted by Doctors at aurangabad on the same day. The inquest reports of Renu Kumari, Gaya Singh, Giranti kumari, wife of Sitaram Singh and Rita kumari marked Exts.5/20, 5/21, 5/22, 5/23 and 5/24 respectively mention that while the dead body of Gaya Singh was found in front of his house under the Banyan tree towards the west, the bodies of the other deceased were found under the Banyan tree to the west of the house of Gaya singh. The corresponding postmortem reports of the above five deceased are Exts.2/18, 2/19, 2/20, 2/22 and 2/12 respectively. The corresponding postmortem reports of the above five deceased are Exts.2/18, 2/19, 2/20, 2/22 and 2/12 respectively. While the Doctor (P. W.10) had performed the autopsy on Rita Kumari, the Doctor (RW.12) had performed the autopsy on the rest of the deceased. The postmortem examination had revealed antimortem injuries on all the deceased caused by sharp cutting weapons and which in the opinion of the Doctor had caused their death. There was some confusion with regard to the name of the deceased Giranti Kumari which had been wrongly mentioned as Giranti kumar S/o Sitaram Singh in the inquest report (Ext. .5/22) and which was subsequently corrected in the corresponding postmortem report (Ext.2/20) and in connection with which the Doctor (RW.12) performing the autopsy had also addressed a letter (Ext.3) which is on the record. 17. So far Sitaram Singh (decd.) is concerned his body does not appear to have been identified among the dead by any one including his two full brothers RW.2 and P. W.4. According to RW.3. his father sitaram Singh after being cut was thrown by some 4 to 5 unknown persons into the house of Lakhan Singh which had been set on fire. That Sitaram Singh was among the 26 persons killed is beyond doubt. There are two inquest reports marked Exts.5 and 5/6 respectively in respect of the two deceased who could not be identified and the corresponding postmortem reports are exts.2/24 and 2/25 respectively. The inquest report (Ext.5) is in respect of an unknown male aged about 27 years whose body was found in the courtyard of Lakhan singh in the northern side near the entrance door. Its neck had been chopped off and the dead body was completely burnt. The postmortem report (Ext.2/24) described the body as that of a Hindu male aged 25 years which was completely burnt and charred. However, it describes the injury on the neck as shown in the inquest report due to retraction of the skin which is burnt. In the opinion of the Doctor cause of death was extensive burn injury by direct fire and charring. The other inquest report in respect of an unknown person which is Ext.5/6 described that the body was completely burnt and was found in the Domuha of the house of Lakhan Singh. The inquest report meantions that neck was chopped off and more details could not be obtained due to burn. The other inquest report in respect of an unknown person which is Ext.5/6 described that the body was completely burnt and was found in the Domuha of the house of Lakhan Singh. The inquest report meantions that neck was chopped off and more details could not be obtained due to burn. The postmortem report (Ext.2/25)mentions that the whole body was totally burnt and charred and only bones and some portions were left on bed. The inquest report does not mention the age of the deceased and the postmortem report which mentioned it as 20 years did not indicate any antimortem injury caused by sharp cutting weapons. Thus in all probability the inquest report (Ext.5) and the postmortem report (Ext.2/24) in respect of an unknown male was that of Sitaram Singh as it was found completely burnt in the courtyard of lakhan Singh on the northen side near the entrance door. In this view of the matter (Ext.2/25) would be that of Chotu s/o baijanti Devi and since the whole body was found completely burnt the age (20 years)given by the doctor may at best be his guess work only. The fact that the body of sitaram father of P. W.3 had been burnt beyond recognition was described as consistent with the tenstimony of P. W.3 that he saw him being thrown into the house of lakhan Singh which was on fire. P. W.3 had also given a detailed description of the assault on his mother while stating that he saw Pravesh Yadav A-8 cutting her neck and left hand wrist. The postmortem report (Ext.2/22) of his mother i. e. w/o Sitaram singh mentioned incised wound on the face and back of left ear as also an incised wound on left wrist 3" x 3" x bone deep. The antimortem injuries on the body of the mother of P. W.3 was also described as consistent with the description of the assault given by P. W.3. 18. Thus there is no evidence on the record as to how and by whom the other twenty deceased were murdered. It may be recalled that P. W.3 claimed to have witnessed the killing of one Gaya Singh and five members of his family namely father, mother and three sisters. 18. Thus there is no evidence on the record as to how and by whom the other twenty deceased were murdered. It may be recalled that P. W.3 claimed to have witnessed the killing of one Gaya Singh and five members of his family namely father, mother and three sisters. It is significant that he did not say a word about the murder of his other relations which included his grand mother Kunwar, Binod and Uday both sons and Baijanti Devi D/o his uncle ramdin (RW.2) and Arun Kumar Singh son and urmila daugher-in-law of his other uncle triveni Singh (PW.4 ). 19. Before appreciating the evidence on the record, an unusual feature of the case deserves to be mentioned. The first witness examined by the prosecution in support of the case involving the gruesome murder of as many as 26 persons including women and childern namely Sheonandan mochi alias Shiva Mochi P. W.1 was bold enough to make a disclosure that he had been threatened by some of the accused persons not to depose in the case and if he deposed he would face the consequences. He also spoke of having given the infomation in writing about the threat held out to him to both the District Magistrate and the superintendent of Pollice. The trial court has lamented the fact that no action was taken by the officials and no protection was provided to the witness. The trial court has also referred to a letter dated 24.11.90 written by Special P. P. to the then Superintendent of Police, Aurangabad, stating therein that most of the prosecution witnesses had been brought for evidence by the accused persons. Curiously enough the letter instead of goading the authorities to some kind of action to provide protection to the witnesses so that they could attend the court and depose without any kind of fear of any threat from any one, made the S. R to send a reply by his letter on 27.11.90 that witness is not an article kept in a shop from where he is picked up and given in the bag. To crown all this a D. O. letter dated 25.1.91 addressed by the Presiding Officer of the court to the then District Magistrate to take personal interest so that witnesses are produced in the court on the date fixed evoked no response. To crown all this a D. O. letter dated 25.1.91 addressed by the Presiding Officer of the court to the then District Magistrate to take personal interest so that witnesses are produced in the court on the date fixed evoked no response. The trial court has noted with dismay such apathetic attitude on the part of the administration in the conduct of such an important case when in the past the administration used to take action on receipt of D. O. letter from the court in connection with session cases of petty nature. It may not be out of place to mention here that the Trial Judge has expressed his anguish and adversely commented on the mannor in which the I. O. (RW.25) investigated the case and the Special P. P. conducted the prosecution case in the court. 20. Be that as it may the case to be decided on the basis of the evidence adduced and not on the basis of what could have been done and was not done. The conviction of the appellants can be supported only on the basis of the evidence on the record which could be relied upon and which necessarily means the evidence of the solitary eye witness P. W.3 and other evidence on the record, which can be relied upon to corroborate his testimony. 21. The first and foremost infirmity pointed out against the prosecution case is that the fardbeyan (Ext.13) was not recorded at 1 a. m. on 30.5.87 at the P. O. village as claimed by the prosecution and had been subsequently brought into existence and ante dated. It may be recalled that the informant Raj Ballabh Singh (RW.13)did not support the prosecution case and was declared hostile. Though he admitted his signature appearing on his fardbeyen, he denied having made any statement to the I. O. on 30.5.87. It may be recalled that the informant Raj Ballabh Singh (RW.13)did not support the prosecution case and was declared hostile. Though he admitted his signature appearing on his fardbeyen, he denied having made any statement to the I. O. on 30.5.87. Though he also admitted to have put in the date 30.5.87 in his hand writing on the fardbeyan, he gave an altogether a different story in his cross-examination by the defence that he received the information about the murder of his brother-in-law Byas singh in his village at 9 a. m. on 30.5.87 and only after getting the information verified from the house of his brother-in-law in canbehri he went to the village Baghaura at about 11-11.30 a. m. If the informant is to be believed, he saw the dead bodies of all the deceased including that of his brother-in-law being loaded on a tractor but he did not meet any body of Baghaura and came to aurangabad before the arrival of the dead bodies and the witnesses. After cremating the dead body of his brother-in-law he went back to village Canbehri. The informant claims that the Inspector of Police called him from village Canbehri by sending a jeep to his village at 5.30 p. m. on 31.5.87 and when he went to the police station he was compelled to put his signature and give the date as 30.5.87 by the Inspector of police who threatened to falsely implicate him. 22. The trial court considered the defence argument that when the I. O. (RW.25)arrived at Baghaura he did not find any one there and the police officials were looking for a suitable person to become the informant of the case and P. W.13 was accordingly summoned from village canbehri to Madanpur by the police on the evening of 31.5.87. It also took note of the defence argument that when Byas Singh the brother-in-law of the informant was himself present in the village and was killed alongwith other deceased, there could have been no occasion for the informant to be present in the village for looking after the tractor of his brother-in-law. Another circumstance relied upon to show that the fardbeyan was ante dated is that as many as 43 accused persons has been named therein when on his own admission the informant did not know the villagers as also the names of the accused persons. Another circumstance relied upon to show that the fardbeyan was ante dated is that as many as 43 accused persons has been named therein when on his own admission the informant did not know the villagers as also the names of the accused persons. The delayed receipt of the F. I. R. by the court on 2.6.87 was also relied upon to support the theory of ante dating of the F. I. R. The trial court considered all the aspects of the argument and for reasons recorded rejected the contention with which I find myself in complete agreement. Where was the necessity for the I. O. to send a jeep to the village of the informant on the evening of 31.5.87 to bring him to the police station when the presence of the informant at the P. O. village on 30.5.87 is itself established not only on the basis of the documentary evidence but on his own admission The I. O. (RW.25)had inspected the P. O. in presence of the informant (RW.13) as also P. RWs.4 and 19. As mentioned in para 20 of the case diary a local inspection was made by him 10 minutes after mid day on 30.5.87. On that very day the I. O. has also recorded the subsequent statement of the informant. The I. O. had seized a partly burnt tractor vide seizure list Ext.12/2 from the P. O. at 2 p. m. on 30.5.87 in presence of two witnesses ineluding the informant who had also put his signature thereon. All this gave a lie to the claim of the informant that he visited the village Baghaura on 30.5.87 at 11-11.30 a. m. on hearing the news of the murder of the brother-in-law. It is equally significant that the fardbeyan (Ext.10) is in the hand writing of the I. O. and as observed by the trial court it has been written in a normal hand written. The learned trial court had referred to the statement of the I. O. that he was ill from 31.5.87 to 6.6.87 and was running high fever and had been administered saline drip. It was argued on behalf of the appellants that the I. O. was not indisposed and the prosecution has only sought to explain the non-recording of the statement of any witnesses during the alleged period of illness for no eye witnesses to the occurrence were available. It was argued on behalf of the appellants that the I. O. was not indisposed and the prosecution has only sought to explain the non-recording of the statement of any witnesses during the alleged period of illness for no eye witnesses to the occurrence were available. The I. O. categorically stated that he was ill and therefore on leave during the said period and that he had put in an application for grant of leave. Admittedly the case diary does not contain any entry during the aforesaid period of his leave. There is, therefore, no reason to doubt the claim of the I. O. that he fell ill and did not investigate the case during the period of his leave. If the I. O. was on leave on 31st May 1987, he could not have sent to the informant and got his fardbeyan on that date recorded in the police station after threatening him with serious consequences if he did not oblige. In case the I. O. recorded the fardbeyan in his own hand, he could not have done so in a normal hand writing on account of his running high temperature. Another significant aspect of the case is as to why and for what the informant could have been threatened with serious consequences if he did not act according to the dictates of the I. O. in the matter of ante dating his signature (Ext.4)on the fardbeyan (Ext.10 ). The informant belonged to the Rajput community and hailed from the village other than the RO, village and his own brother-in-law Byas had been killed in the instant case. He had thus nothing to fear from the police for he could not be implicated as responsible for the massacre for any reason whatsoever. 23. As was noticed by the trial court the Spl. RR had filed Haziri of the informant on 18.6.90 but when the case was called out he filed a time petition that the prosecution did not wish to examine the informant on that date. It is significant that the defence was also not ready on that date and had wanted adjournment. On the next date i. e. on 19.6.90 the informant could not be examined as the defence purposely did not file any representation petition on behalf of an accused, although such a representation petition had been filed on his behalf on the previous day i. e.18.6.90. On the next date i. e. on 19.6.90 the informant could not be examined as the defence purposely did not file any representation petition on behalf of an accused, although such a representation petition had been filed on his behalf on the previous day i. e.18.6.90. Without sharing the views of the trial court that such action on the part of the Spl. P. R had created an adverse impression on the informant resulting in his turning hostile, one cannot held but recall what P. W.1 the first prosecution witness had stated in his evidence. P. W.1 had categorically stated and had named some of the accused persons including some of the appellants as having threatened him with dire consequences if he deposed in the case. The learned spl. RR despite the allegation made by RW.1 who also spoke about his having filed a petition alleging such threat before the authorities had taken no steps for filing an application for cancellation of bail. The trial court has gone on record that the local administration had taken no interest in providing security to the prosecution witnesses. All this taken together go to give some significance to the manner in which Spl. R R was helpful to the defence in ensuring that the informant when he appeared in the court for giving evidence could not be examined on that date or on the day followiing. It is equally significant that when the iinformant (RW.13) deposed in the case the sp. P. P. took no steps to confront him with his signature dated 30.5.87 appearing on the seizure list (Ext.12/2 ). Had he done so the informant would have been in difficulty in sticking to his story that he met the l. O. for the first time in the police station on the evening of 31.5.87 and not on 30.5.87 when his fardbeyan is said to have been recorded. 24. Had he done so the informant would have been in difficulty in sticking to his story that he met the l. O. for the first time in the police station on the evening of 31.5.87 and not on 30.5.87 when his fardbeyan is said to have been recorded. 24. The appellants in the trial court had relied on a decision of the Apex court in ishwar Singh V/s. State of U. P. (A. I. R.1976 s. C.2423) wherein it was held that the extra ordinary delay in sending the F. I. R. is a circumstance which provides a legitimate basis for suspecting that the F. I. R. was recorded much later than the stated date and hour affording sufficient time to the prosecution to introduce improvements and embelishments and set up a distorted version of the occurrence. An important circumstance relied upon by the trial court for rejecting the theory of ante dating of the fardbeyan was the fact that the fardbeyan did not contain any reference to the murders being committed by Tangi. This was significant for according to the prosecution case the l. O. has recovered and seized 5 blood stained Tangis vide seizure list (Ext.12/1)on the morning of 30.5.87. If the fardbeyan was not recorded at 1 a. m. on 30.5.87 and was in fact brought into existence with the help of ante dating on the evening of 31st May, 1987, there was no reason why in the name of making improvements the story of murder having been committed by Tangis could not have been mentioned therein. The non-receipt of the f. I. R. which was recorded at 3.30 p. m. on 30.5.87 on the basis of the fardbeyan by the court till 2.6.87 has been explained by the trial court, by referring to certain admitted facts that on that very date and just a short while before the carnage of Baghaura, another carnage had taken place at Dalalchak within the same police station and in which also a number of persons belonging to the same community had been killed. The certified copy of Madanpur P. S. case no.73 of 1987 in connection with that incident is on the record as (Ext. F ). This coupled with the fact that the l. O. fell ill from 31 May, 1987 onwards was considered sufficient to explain any delay in sending the F. I. R. to the court. The certified copy of Madanpur P. S. case no.73 of 1987 in connection with that incident is on the record as (Ext. F ). This coupled with the fact that the l. O. fell ill from 31 May, 1987 onwards was considered sufficient to explain any delay in sending the F. I. R. to the court. It is not that every delay in receipt of the F. I. R. by the court necessarily leads to the inference that it was on account of the prosecution buying time to introduce improvements and embelishments and set up a distorted version of the occurrence. In the present case there is complete absence of any evidence that the delay had occurred for any such purpose. There is also no merit in the contention put forward on behalf of the appellants that the l. O. did not find any person to become the first informant when he visited the p. O. and had, therefore, summoned the informant from his village not on 30th but 31st May, 1987. There is no dispute that p. W.4 a brother of Sitaram had already arrived at village Baghaura in the early hours of the morning of 30.5.87 and he had helped to I. O. in the identification of the dead bodies as also in the matter of local inspection of the P. O. If the l. O. was willing to go out of his say to set up any person as the informant, he could have easily made p. W.4 scapegoat. Moreover when the informant himself admitted that he was in village baghaura at 11-11.30 a. m. on 30.5.87, he could have been made scapegoat on that very day to become the informant of the case in that case there have been no necessity for the l. O. to have sent for him on the evening of 31.5.87. There is also no merit in the argument that the informant being a resident of the village other than the P. O. village could not have mentioned the details in his fardbeyan. The tractor of byas Singh, his brother-in-iaw, was found burnt at the P. O. and had been seized. There is also no merit in the argument that the informant being a resident of the village other than the P. O. village could not have mentioned the details in his fardbeyan. The tractor of byas Singh, his brother-in-iaw, was found burnt at the P. O. and had been seized. That byas Singh was also present at the P. O. and was one of the persons killed does not necessarily lead to the inference that the informant who used to look after the tractor on behalf of his brother-in-law could not be present on the date of occurrence along with his brother-in-law. The village of the informant was only at a short distance from village Baghaura and the fact that the tractor of his brother-in-law and the body of the driver Kesho had been found at the P. O. gave credence to the statement made in the F. I. R. that the informant looked after the tractor of his brother-in-law which used to be given on hire in the P. O. village. In other words the recording of the F. I. R. on the date and time when it purported to have been recorded cannot be challenged on the ground that the informant could not have given the details of the occurrence therein and could not have named the accused persons whom he had identified. In view of all this the trial court was correct in its conclusion that the fardbeyan was recorded at 1 a. m. on 30.5.87 and was not ante dated and there was adequate explanation for its having reached the court on 2.6.87 and that in any view of the matter the delay, if any, had not been utilised for making any improvements or embelishments in the prosecution case. 25. The informant (RW.13) denied having made statement supporting the prosecution case as an eye witness and to have identified a number of accused persons including some of the appellants such as A-3, 4, 5, 6 and 7 in his cross-examination by the prosecution with the leave of the court. As has already been noticed above, the informant was present in the P. O. village at the time of the occurrence and had given his fardbeyan as an eye witness within 4 hours of the carnage. His own brother-in-law Byas Singh was among those killed. As has already been noticed above, the informant was present in the P. O. village at the time of the occurrence and had given his fardbeyan as an eye witness within 4 hours of the carnage. His own brother-in-law Byas Singh was among those killed. Whatever may be the reasons for the informant not to support the prosecution case, the fact remains that he did not support it and consequently the prosecution case, as rightly observed by the trial court, rests entirely on the evidence of P. RWs.1 and 3 who claimed to be present at the time of the occurrence. P. W.1 who alleged threat held out to him from the accused if he deposed in the case resiled from his statement made before the police that he had seen and identified some of the accused actually committing the murders but he did corroborate the claim of P. W.3 that he disclosed the names of the assailants to him on the day following the occurrence. Since the evidence of P. W.1 is only by way of corroborating the claim of P. W.3 that he disclosed the names of the assailants to him, the prosecution case in a way rests entirely on the testimony of P. W.3. Many of the infirmities in the evidence of P. W.3 referred to in course of hearing of the appeal were also mentioned before the trial court which after elaborate consideration rejected every one of them. Before alluding to them some of the decisions of the Apex court cited by the appellants and the State laying down guidelines for evaluating the evidence of a solitary eye witness including a child eye witness in a criminal case need to be noticed. 26. The earliest case relied upon by the appellants is State of Bihar vs. Kapil singh (A. I. R.1969 S. C.53) wherein a three judge Bench of the Court observed that while a child witness of about 12 years can often be expected to give out a true version because of its innocence, there is always the danger in accepting the evidence of such a witness that, under influence, she might have been coached to give out a version by persons who may have influence on her. However, their Lordships disbelieved the evidence of the girl not on the ground of her tender age but for a number of circumstances which indicated that it was unsafe to rely on her evidence. In B. Bhikha vs. State of Gujarat (A. I. R.1971 S. C.1064)though it was not a case based on the sole testimony of a single eye witness, a two judge Bench of the court observed that even if there is no infirmities in the evidence of a young boy who was 14 years of age it would be prudent to seek corroboration of his evidence. The judgment of the Apex court in Ramji Suriya V/s. State of maharashtra (A. I. R.1983 S. C.810) deals with the case of a solitary eye witness, the wife of the deceased who was not a child. Their Lordships held that - "there is no doubt that even where there is only a sole eye-witness of a crime, a conviction may be recorded against the accused concerned provided the Court which hears such witness regards him as honest and truthful. But prudence requires that some corroboration should be sought from the other prosecution evidence in support of the testimony of a solitary witness particularly where such witness also happens to be closely related to the deceased and the accused are those against whom some motive or ill will is suggested. " 27. Though the decision of the Apex court in Sadhu Singh V/s. State of U. P. (A. I. R.1978 S. C.1506) relied upon by the state does not deal with the case of a solitary child eye witness, a three Judge bench of the Court while dealing with the evidence of a girl (age 13 years) had this to say, to quote : - "9. Deomani in her evidence as P. W.2 gave a full account of the occurrence that took place on the morning of 26th march, 1973. She was grilled in cross-examination for three days. She was subjected to a lengthy and rambling cross-examination about all that was said by her in chief examination. She was questioned in great detail about the topography of Nadula village. She was questioned again in great detail about the consolidation proceedings and the disputes between the deceased and the accused. She was grilled in cross-examination for three days. She was subjected to a lengthy and rambling cross-examination about all that was said by her in chief examination. She was questioned in great detail about the topography of Nadula village. She was questioned again in great detail about the consolidation proceedings and the disputes between the deceased and the accused. She was taken through every detail of the occurrence that took place on the morning of the 26th March, 1973 and all that happened on that day after the commission of the murders. She stood the rigour of the crose-examination and Shri Mukherjee, learned counsel for the appellant had to confess that he was unable to discover anything in her cross-examination to discredit her evidence. He, however, argued that the very fact that she was able to give such through answers showed that she had been well prepared to give evidence in the case. We do not agree with this submission of shri Mukherjee. Most of the particulars and details which she gave in her evidence were elicited from her in cross-examination. Having pur her through a gruelling cross-examination and having failed to elicit anything to favour the accused, we do not think that the accused can very well turn round and now say that she must have been well prepared for the cross-examination also. As we said earlier her evidence reveals a remarkable capacity for observation, a keen eye for minute detail and a photographic memory. Both the trial court and the High Court were right in holding that she had given evidence in a very natural and convincing manner and that her evidence was straightforward and not tutored. ". . . . . The Apex Court had occasion to deal with a case of Suresh V/s. State of U. P. (A. I. R.1981 S. C.1122) in murder in/which the conviction of the appellant was based on the solitary testimony of a 5 years old child of the deceased and it observed, to quote :- "2. Sunil, the five year old son of geeta, was examined by the prosecution as the sole eye-witness in the case his evidence has been accepted by the session Court and the High Court. Shri L. N. Gupta, who has argued the case on behalf of the appellant with admirable precision and brevity, contends that no. reliance should be placed on Sunil. Shri L. N. Gupta, who has argued the case on behalf of the appellant with admirable precision and brevity, contends that no. reliance should be placed on Sunil. s evidence because he is a young child of immature under-standing, that no oath was administered to him by reason of his lack of understanding of the sanctity of oath, that he did not implicate the appellant for two days or so at least and that his statement was recorded by the police about 20 days after the incident. ". . . . . Their Lordships after giving their anxious considerations to the weighty considerations advanced on behalf of the appellant observed that on a close scrutiny of the evidence and the circumstances of the case their Lordships were unable to differ from the courts below in regard to the assessment of the evidence in the case. Thus the Apex Court upheld the conviction of the appellant on the basic evidence of a child witness of 5 years recorded by the sessions Court and confirmed by the High court in appeal. A two Judge Bench of the supreme Court in Anil Phukan V/s. State of assam (A. I. R.1993 S. C.1462) while dealing with a case based on the testimony of a single eye witness but not a child eye witness observed that a conviction can be based on a testimony of a single eye witness and there is no rule of law of evidence which says to the contrary provided the sole testimony passes the test of reliability. It was further observed that so long as single eye witness is a wholly reliable witness the courts have no difficulty in basing the conviction on his testimony alone. However, where the single eye witness is not found to be wholly reliable witness, in the sense that there ate some circumstances which may show that he could have an interest in the prosecution, then the courts generally insist upon some independent corroboration of his testimony, in material particluars, before recording conviction. The bench was pleased to observe further that it is only when the courts find that the single eye witness is a wholly unreliable witness that his testimony is discarded in toto and no amount of corroboration can cure that defect. The bench was pleased to observe further that it is only when the courts find that the single eye witness is a wholly unreliable witness that his testimony is discarded in toto and no amount of corroboration can cure that defect. In Mangoo V/s. State of M. P. (A. I. R.1995 S. C.959) a two Judge Bench of the Court had occasion to deal with a case of murder which mainly rested on the evidence of a boy (aged about 16 years)who happened to be the son of the deceased. The trial court had acquitted the accused on the ground that the evidence of the sole witness Dev Dutta P. W.2 was not wholly reliable on the ground that the medical evidence was in conflict and there was possibility of the witness having been tutored and that there were certain discrepancies in material particulars in his evidence. On an appeal preferred by the state against the judgment of the trial court the High Court held the reasoning given by the trial court to be wholly unsound and allowed the appeal. The Supreme Court did not find any merit in the appeal and up-held the conviction and observed, to quote : - "5. . . . . . The learned counsel also pointed out the P. W.2 being a child witness, there was every scope of tutoring and the fact that he has admitted that he was in the district head-quarters for about 12 days before adducing the evidence, also shows that he must have been with the police for the purpose of tutoring. The mere fact that he might have been taken by the Police to be produced as a witness, is not a ground to come to the conclusion that the witness must have been tutored but on examining the evidence and from the contents, we have to see whether there are any traces of tutoring. We find that the version given by P. W.2 appears to be quite natural and there is a ring of truth in the same. The evidence of P. W.1 further corroborates the evidence of P. W.2 namely to the extent that immediately after the occurrence P. W.2 mentioned the names of the accused and the manner in which his father had been done to death. " 28. The evidence of P. W.1 further corroborates the evidence of P. W.2 namely to the extent that immediately after the occurrence P. W.2 mentioned the names of the accused and the manner in which his father had been done to death. " 28. Learned counsel for the appellants contended that in the light of the pronouncements and observations of the Supreme court the evidence of the solitary child eye witness P. W.3 should be rejected as wholly unreliable. A number of circumstances were pointed out which suggested that P. W.3 was not present in village Baghaura on 29.5.87 and could not, therefore, by an eye witness to the occurrence. It was contended that during the relevant period P. W.3 was residing at his Nanihal at Balihari balibigha under Rafiganj police station from before the occurrence. In cource of cross-examination the witness claimed to be reading in a school in Chiimy and that he used to go alongwith his sister and a girl of his village. Some of the statements made by the boy that he used to live with his uncle ramdin Singh (RW.2) at Garhwa before going to Gaya and used to read there as also that he had read at a school at Gaya obviously refer to his studies after the occurrence. Such an inference is inevitable in view of his specific statement in para 14 of the cross-examination that he used to live at Garhwa since the age of 8 years. It may be recalled that the boy was 8 years old at the time of the alleged occurrence. There is no dispute that the father, mother and three sisters of P. W.3 resided in village Baghaura and were killed. Since the witness was only 8 years old, his ordinary place of abode would be with his parents. There is nothing on the record to suggest that the boy was sent to his Nanas place for the purpose of better education. It was pointed out on behalf of the State that PW.3 had given such a graphic and detailed account of the topography of the village that it was only consistent with his claim that he lived with his parents. The defence produced a witness Jagdish Singh (D. W.4) a resident of village Bhasari within Rafiganj Police station of Aurangabad. It was pointed out on behalf of the State that PW.3 had given such a graphic and detailed account of the topography of the village that it was only consistent with his claim that he lived with his parents. The defence produced a witness Jagdish Singh (D. W.4) a resident of village Bhasari within Rafiganj Police station of Aurangabad. He stated that he knew rejdeo Singh of Balihari Balibigha a tola of his village and that his Nati P. W.3 lived with him for study. If the witness is to be believed he had been to the place of Rajdeo singh on 30.5.87 and to have learnt that his daughter and son-in-law who were from Baghaura have all been killed. The trial court had rejected the testimony of D. W.4 for good reasons. There is nothing in his cross-examination to suggest that he was on visiting terms with Rajdeo Singh, his claim that P. W.3 attended a school at his nanihal could not be accepted for the simple reason that he couid not name the school where he studied. D. W.4 was being examined on 27th March 1992 i. e. almost five years after the alleged occurrence. In such a situation his competence to give the date of his visit to the place of Rajdeo singh on 30.5.87 when he learned about the death of his son-in-law and daughter cannot be accepted without a pinch of salt. What makes his evidence worthless is the statement in his examination-in-chief that he had not seen Shailendra Singh (RW.3) for 8 to 9 days even after 30.5.87. It may be recalled that the evidence of P. W.3 is that after attending the cremation of his family members at Aurangabad on 30.5.87 he had gone to his Nanas place on the next date and had stayed there until 7.6.87 when he visted the village Baghaura alongwith his nana on the 10th day of the death of his relations. Thus the statement of D. W.4 that he did not see P. W.3 for 8 to 9 days even after 30.5.87 clearly suggests that the witness was making statement from his imagination. It has also come in the cross-examination of D. W.4 that he was acquainted with Keshwar Yadav A-3 and that a-3 had told him that he had been falsely implicated while making enquiry whether he would give evidence. It has also come in the cross-examination of D. W.4 that he was acquainted with Keshwar Yadav A-3 and that a-3 had told him that he had been falsely implicated while making enquiry whether he would give evidence. Thus there were reasons other than those relied upon by the trial court for rejecting the testimony of D. W.4. Another defence witness Mungeshwar yadav (D. W.11) who claimed that P. W.3 lived at his Mamhar and not at village baghaura was also not worthy of any reliance for the simple reason that D. W.11 was a resident of village Jamunia within madanpur police station. There is nothing in his evidence to suggest that he had ever visited the Nanihal of P. W.3 which was in a village in Rafiganj police station. Moreover, his claim that he had been to village baghaura on the morning of 30.5.87 and was there from 6 a. m. to 10 a. m. and had not seen during the said period P. Ws.2, 3, 4 and 19 is belied by the fact that P. Ws.4 and 19 were present in the village on the morning of 30.5.87 as is evident from the evidence of the I. O. (RW.25) himself. The trial court was thus right in rejecting the testimony of D. W.11 as unbelievable. 29 The absence of P. W.3 from the P. O. village on the date of the occurrence is sought to be inferred from the fact that the fardbeyan said to have been recorded at 1 a. m. on 30.5.87 did not mention the name of P. W.3 as an eye witness. There is no merit in such a contention. There is no evidence on the record that P. W.13 who gave the fardbeyan was aware of the fact that P. W.3 had survived the carnage and had witnessed the occurrence. P. W.3 after the occurrence came out from the place where he had concealed himself and had thereafter left the village in the company of some others. In the circumstances the fact that he was not named as an eye witness in the fardbeyan did not necessarily lead to the conclusion that he was not present in the P. O. village on the date of occurrence. In the circumstances the fact that he was not named as an eye witness in the fardbeyan did not necessarily lead to the conclusion that he was not present in the P. O. village on the date of occurrence. Another circumstance relied upon to exclude the presence of P. W.3 at the time of the occurrence is that he would have met the same fate as his father, mother and sisters and would not have survived to describe the occurrence. The basis for such an argument is that the witness claimed to be with his father at the time of the occurrence when people came running from the south of the village. It was argued that the normal instinct of a 8 years old child would be to follow his father in such a situation for the sake of safety. Hence the claim of the witness that he ran to the Gaushala of Chintaman yadav and hid himself and saw the occurrence from there was so highly improbable that it ought to be rejected. Persons of different age groups act differently in a situation and the conduct of P. W.3 in not running for his life alongwith his father is not such that it should lead to the conclusion that he was not present at the P. O. The very fact that the boy was not among those killed including his father and other relations is strongly suggestive of the fact that he did not run for his life alongwith his father. The fact that P. W.3 survived the attack when all the members of his family were killed is described as so highly improbable that it was only consistent with the absence of the witness from the P. O. village. P. W.3 unlike his mother and sister who were pulled out of their house and murdered was with the father in an open space like the Khand of P. W.19. He was thus among the first who noticed the people coming running to the village from the south. He being a child of only 8 years of age could have managed to escape as on the evidence adduced he had run further north. In the circumstances if P. W.3 escaped the notice of the miscreants and survived, there was nothing inherently improbable in that. He being a child of only 8 years of age could have managed to escape as on the evidence adduced he had run further north. In the circumstances if P. W.3 escaped the notice of the miscreants and survived, there was nothing inherently improbable in that. The other ground for disputing the presence of P. W.3 in the village is the fact that the I. O. recorded his statement for the first time on 7.6.87. It was argued that if P. W.3 was an eye witness and was present in the village on 30.5.87 when the I. O. came, there could be no reason whatsoever as to why his statement could not have been recorded on that very date itself. On the evidence adduced P. W.3 had left the village soon after the occurrence and had returned to the village on the morning of 30.5.87 and had again left for aurangabad after a few hours. On the morning of 31st May 1987 P. W.3 had accompanied his maternal grand father to his nanihal and had returned to the village baghaura on 7.6.87. The I. O. due to illness remained on leave from 31.5.87 to 6.6.87 and did not record the statement of any witness during the said period. In such circumstances the recording of the statement of P. W.3 by the I. O. on 7.6.87 did not necessarily point out to the absence of P. W.3 from the P. O. village on the date of occurrence. 30. Pw.3 was subjected to a thorough, searching and gruelling cross-examination on behalf of the different sets of accused persons for about 8 days. He entered the witness box on 20th June 1989 and his cross-examination began the same day and continued every day until 24th june 1989 i. e. for five continuous days. It was then adjourned to 5th July 1989 and continued for another three days -5th, 6th and 11th July when he was discharged. A leading of the evidence of the witness and the answers given by him in course of cross-examination gives the impression that the boy came out of the grill lasting 8 days practically unscathed. It was then adjourned to 5th July 1989 and continued for another three days -5th, 6th and 11th July when he was discharged. A leading of the evidence of the witness and the answers given by him in course of cross-examination gives the impression that the boy came out of the grill lasting 8 days practically unscathed. He had given a vivid descriptions of the surroundings and topographical features in and around the p. O. including the names of the house owners and the location of their houses with such precision that one cannot help but appreciate his sense of keen observation. He answered the questions regarding the description of the occurrence given by him with such ability and ease not easily expected of childern of his age. It was perhaps for these reasons that the learned addl. Sessions Judge in course of his judgment had observed that PW.3 had not been shaken in the cross-examination and that during recording of his evidence he did not find him (RW.3) shaking or shirking from giving answers and taking time in answering. The defence having failed to elicit anything in the cross-examination to impeach his credit suggested that he had been tutored. The witness denied the suggestion. Such an argument was also advanced on bahalf of the appellants and vehemently denied by the State which described the witness as intelligent. It was pointed out that there being no eye witness to the occurrence, P. W.3 was set up by his relations. In reply to specific query made the learned counsel for the appellants suggested that it could be any of the relations including PWs.2 and 4 the two uncles of pw.3 or his maternal grand father with whom he on his own admission spent 7 days after the alleged occurrence. Rajdeo the maternal grand father of the witness had lost his son-in-law, daughter and three maternal grand daughters. Considering the circumstnaces and the back ground in which the carnage took place in which members of a particular caste to which P. W.3 also belonged had been killed in the village, the maternal grand father of the witness ordinarily would be the last person to expose his maternal grand son to any possible threat to his life by setting him up as a witness and then tutoring him to depose against the appellants. 31. 31. On behalf of the State it was pointed out that on the evidence on the record the two uncles of the witness namely P. RWs.2 and 4 had no opportunity to tutor their nephew. Mr. Gupta displaying his usual grip and grasp over the evidence appearing on the record referred to a number of circumstances in the evidence of the witness to exclude any possibility of either P. W.2 or p. W.4 tutoring the witness. He pointed out that in view of the clear, cogent and elaborate statements of P. W.3 the appellants have completely failed to show from his evidence that he was a tutored witness and were, therefore, relying on the surrounding circumstances to prove that he was tutored. He contended that it is not enough for the appellants simply to show that there was opportunity of P. W.3 being tutored. What was required was that the appellants should have on the basis of the evidence adduced shown that the witness was in fact tutored. Sri Gupta, however went to the extent of arguing that there was in fact no opportunity for P. Ws.2 and 4 to tutor P. W.3. From the evidence on the record P. W.3 who left the village in the company of Ramkeshwa Dusadh shortly after the occurrence had returned to village baghaura from Bangore where he spent the night in the morning of 30th May 1987. His uncle P. W.4 had reached the village in the early hours of the morning and both P. RWs.3 and 4 had left together after a few hours the same day for Aurangabad where the dead bodies had been removed and where the postmortem examination took place the same afternoon. P. W.2 had reached Aurangabad on the 30th and he had met P. W.3 there. They had spent the night at Aurangabad and while P. RWs.2 and 4 returned to village Baghaura and stayed there P. W.3 left Aurangabad in the early morning of 31st may, 1987 with his maternal grandfather. P. W.3 continued to stay in his Nanihal till the 7th june 1987 when he came to Baghaura along with his Alana on the occasion of dashma i. e. the 10th day of the death of his relations. It is not in dispute that the I.0. P. W.3 continued to stay in his Nanihal till the 7th june 1987 when he came to Baghaura along with his Alana on the occasion of dashma i. e. the 10th day of the death of his relations. It is not in dispute that the I.0. (RW.25) had recorded his statement on 7th june itself in which he claimed to have witnessed the occurrence and to have identified the appellants. If P. RWs.2 and 4 had any opportunity to tutor P. W.3, both had such an opportunity at Aurangabad on 30th may only. On 30th May postmortem examination on the dead bodies of as many as 20 members of the family was conducted during the afternoon and the cremation had also taken place the same evening. 32. Can it be reasonable to believe that P. RWs.2 and 4 would in such circumstnaces have the necessary time and leisure to vent the story and tutor P. W.3 to make the particular statement as an eye witness ? both the uncles of the witness must have been busy in receiving the dead bodies after postmortem examination and arranging for the cremation at Aurangabad. If both of them had taken the trouble of tutoring P. W.3 during the night they would have been the last persons to allow P. W.3 to leave for his Nanihal the next morning. If both had decided to set up P. W.3 as an eye witness after tutoring both of them could have kept P. W.3 in their company and could have been instrumental in getting his statement recorded by the 1.0. at the earliest point of time. In this connection it is significant that no suggestion was given to P. W.2 and P. W.4 that they had tutored P. W.3. It can be argued that P. W.4 was the first to meet P. W.3 in the village on the morning of 30th May and in all likelihood he was the uncle who tutored his nephew to falsely claim that he was an eye witness to the occurrence. From the evidence on the record it is clear that P. W.4 had taken active part in the identification of the dead bodies and both P. RWs.2 and 4 had left the village in a jeep for Aurangabad with the dead bodies placed in a tractor. A tragedy of the highest magnitude had struck the family. From the evidence on the record it is clear that P. W.4 had taken active part in the identification of the dead bodies and both P. RWs.2 and 4 had left the village in a jeep for Aurangabad with the dead bodies placed in a tractor. A tragedy of the highest magnitude had struck the family. P. W.3 had lost his grand mother, father, mother and all the three sisters besides other relations. PW.4 had also lost many members of his own family in coruse of the carnage including the father of P. W.3 who happend to be his own brother. It is beyond ones stretch of imagination to even conceive that while the dead bodies were being identified, collected and being placed in a vehicle for being taken to Aurangabad, P. W.4 had either the necessary time or was in a fit mental state to tutor P. W.3. For identical reasons it was difficult to believe that P. W.3 in the presence of the dead bodies of his father, mother and sister could have been in a fit state of mind to get tutored by in any one including his uncle P. W.4. That p. W.4 did not tutor P. W.3 at Baghaura on the morning of 30th May is also evident from the fact that no such story was mentioned by P. W.4 in his statement admittedly recorded by the I. O. (RW.25) on 30.5.87 itself. If P. W.4 was instrumental in tutoring p. W.3 to make a particular statement, he being the author of such tutoring would have been the first to incorporate the gist of the story in his statement before the police which in fact he did not do. Thus there is no evidence on the record that P. W.3 was a tutored witness. 33. The veracity of P. W.3 as a witness has been challenged on the ground that he is a relation of the deceased and the families of the deceased and the appellants were on inimical terms from before. Thus there is no evidence on the record that P. W.3 was a tutored witness. 33. The veracity of P. W.3 as a witness has been challenged on the ground that he is a relation of the deceased and the families of the deceased and the appellants were on inimical terms from before. Both p. Ws.2 and 4 have given details of a number of incidents that took place between the members of the two castes i. e. Rajputs and yadavas of the village P. W.2 referred to an incident that took place on 30.11.85 and for which on the complaint of Dhrub Narain singh, Madanpur P. S. Case No.138 of 1985 was registered.18 men of the Yadaves caste inclduing some of the appellants figured as accused in the said criminal case for assault. Dhrub Narain Singh and complainant and some prosecution witnesses of that case were among those murdered in the present carnage. P. W.2 also disclosed that he visited his village frequently and on one such visit on 1.5.82 while going to his land and passing through a Khalihan he heard Pravesh Yadav A-8 say that Chechani carnage would be avenged by chopping off 7 heads of Rajputs for each one of the deceased member of the Yadav caste and brahamdeo Yadav A-6 had declared that the task would be performed at the earliest. P. W.2 also mentioned about his visit to baghaura a few days before the occurrence. After being informed about an incident in course of which there was heated exchange of words in between Binod kumar Singh (deceased) and Pravesh yadav A-8, P. W.2 had talked out the matter with some members of the Yadav caste and had felt satisfied on their assurance that the men of the two castes will maintain their friendship. P. W.4 has also spoken about some of the incident mentioned by his brother P. W.2. He also referred to some similar incidents. It is not necessary to refer to certain omissions in the statements of p. Ws.2 and 4 recorded by the police with regard to the incidents that took place prior to the occurrence. Suffice to say, there is sufficient evidence on the record of strained relationship and of uneasy truce in between the member of the two castes in the village. Suffice to say, there is sufficient evidence on the record of strained relationship and of uneasy truce in between the member of the two castes in the village. The incident that took place at Chechani and such other places also contributed towards the relationship being strained further. It is not necessary to dweli on this aspect of the case for long for there is hardly any dispute regarding the existence of points of friction between the parties both on account of the fact that they belonged to two different castes and also because of some criminal case brought by one of the deceased in which some yadavas including some appellants figured as accused. Only because the relationship between the parties was strained is no ground for drawing an inference that the appellants had been falsely implicated. It is all the more so because even according to the prosecution case enemity between the two castes in the village was the cause of the carnage although some incidents in neighbouring villages involving the two castes had also fueled the fire of hatred already burning for some time. 34. It was argued that the testimony of p. W.3 should be rejected for the reason that the prosecution had suppressed the statement initially given by him (P. W.3) to the police at Baghaura on the morning of 30.5.87. It was pointed out that P. W.3 had himself admitted that he made such statement before the Jamadar Saheb and his uncle P. W.4 has also supported this fact. It may be mentioned that a large number of police men had already reached the village before the arrival of P. W.4 at 5 a. m. and of p. W.3. at 8 a. m. in the morning of 30.5.87. The argument that P. W.3. being the only eye witness of the occurrence who claimed to have identified some of the accused persons could have been the centre of attraction and his presence would not have gone unnoticed and his statement must have been recorded by the police as claimed by him on the morning of the occurrence itself is not supported by the facts. being the only eye witness of the occurrence who claimed to have identified some of the accused persons could have been the centre of attraction and his presence would not have gone unnoticed and his statement must have been recorded by the police as claimed by him on the morning of the occurrence itself is not supported by the facts. A tardbeyan by a person (P. W.13) who claimed to have witnessed the occurrence and who indentified as many as 43 accused persons by name had already been recorded at 1 a. m. Not only the senior administrative and police officials, even the Chief Minister had reached the village. The Superintendent of police had already arrived at 2.30 a. m. itself. Considering the magnitude of the crime and the large number of people killed in the carnage, the Superintendent of Police had made arrangements; for the inquest on the 26 dead bodies to be held not by the I. O. (P. W.25) but by some one else i. e. an A. S. I. (P. W.21 ). The presence of P. W.3 in the circumstances far from being the centre of attraction must have been relegated to the back ground. There is also no evidence on the record that P. W.25 recorded the statement of P. W.3 on 30.5.87. He in fact denied any knowledge of the presence of the witness in the village and claimed that had he known about him (P. W.3) he would have certainly reocrded his statement. The evidence on the record indicates that P. W.25 had himself recorded the statement of witnesses on 30.5.87. During the period he was ill and remained on leave i. e. from 31.5.87 to 6.6.87 the I. O. did not authorise any one to record the statement of nesses in his absence. It is also a fact that the case diarydoes not contain the statement of any witness recorded during the period the I. O. was on leave. P. W.3 left village Baghaura for Aurangabad along with the dead bodies soon after his arrival. He remained in the P. O. village only for a very short time. It is also a fact that the case diarydoes not contain the statement of any witness recorded during the period the I. O. was on leave. P. W.3 left village Baghaura for Aurangabad along with the dead bodies soon after his arrival. He remained in the P. O. village only for a very short time. If the I. O. in the facts and circumstances of the case failed to notice the presence of P. W.3 and record his statement on 30.5.87 before he left for Aurangabad, it is quite understandable and no eye brow need be raised on that score. The state of mind of both P. RWs.3 and 4 on the morning of 30.5.87 with the dead bodies of 20 members of their family lying here and there can be better imagined than described. In the circumstances it is quite possible that P. W.3 described the occurrence to some police men who were in the village in quite a large number, be it Jamadar Saheb, Hawaldar or any one in Khakhi uniforms and both P. RWs.3 and 4 carried an impression that the statement had been recorded. Since the recording of any such statement is itself doubtful, the allegation that it had been suppressed loses all its significance. Thus there is no basis to hold that the statement of P. W.3 was recorded by the police on 30.5.87 and which statement was favourable to the defence and the prosecution had for that reason suppressed it. For identical reason there is no merit in the contention that there was undue delay in recording the statement of P. W.3 by the police. As already noticed, delay if any, was not deliberated and was not made for imaking out time to fabricate a story. The ii. O. (RW.25) could not also be blamed for che delay for he remained ill from 31.5.87 to 6.6.87 and took no part in the investigation of the case including recording of statements of witnesses during the said period. Since P. W.3 came to the village on 7.6.87 flrom his Nanihal the day the I. O. resumed ifie investigation and his statement was witrecorded on that very date, he (P. W.25)had recorded the statement as early as he could in the facts and circumstances of the case. 35. Since P. W.3 came to the village on 7.6.87 flrom his Nanihal the day the I. O. resumed ifie investigation and his statement was witrecorded on that very date, he (P. W.25)had recorded the statement as early as he could in the facts and circumstances of the case. 35. It was argued on behalf of the appellants that P. W.3 could not have witnessed the occurrence from the place where he was hiding. P. W.3 was sitting on a Chouki in the khand of Ramlakhan Singh (RW.19) when he saw many persons running from the south. He fled away and entered into the cow-shed of Chintaman yadav. Chintaman Yadav is appellant no.5 and he is son of Rambilash Yadav. The gaushala has been described as cow shed, "bailghara" and ox shed of Chintaman yadav or of Rambilash Yadav in the evidence of the witnesses but they all refer to one and the same place. P. W.3 has given a graphic account of his escape to the cow shed from the khand in the cross-examination. He stated that he came out of the Khand from its north east corner, crossed the road and entered into the cow shed. He described that there were two rooms-the eastern room and western room in the cow shed and both were fourteen to fifteen feet in length east to west and seven to eight feet wide north to south. He first entered the western room of the cow shed which had two doors-one towards the east and another one on the south west corner. The witness concealed himself near the door of the south west corner and began peeping and watching. In course of the cross-examination he disclosed that he was concealing himself by the side of the door. He did not see the whole occurrence from western room. He saw the fire being set on and the murder of his father and Gaya uncle. Thereafter P. W.3 went into the eastern room where he concealed himself by the side of a window which was on the south east corner in the eastern room. He explained in his cross-examination that the occurrence took place near the Banyan tree and in the Khand of Lakhan Singh one after another. Thereafter P. W.3 went into the eastern room where he concealed himself by the side of a window which was on the south east corner in the eastern room. He explained in his cross-examination that the occurrence took place near the Banyan tree and in the Khand of Lakhan Singh one after another. The witness admitted in the cross-examination that he became frightened after he saw his mother and sisters being cut one after the other on being brought near the Banyan tree and fled away from there. He then went alone to the house of Ramkeshwar dusadh from the cow shed. The aforesaid details carne in the cross-examination of the witness. Nothing was elicited during the cross-examination to discredit the claim of the witness and to show that he could not have witnessed the part of the occurrence as claimed by him from inside the cow shed. Not one suggestion was given in the cross- examination that the P. O. was not visible from inside the Gaushala. The one suggestion given was that Chintaman had no ox shed there suggesting that the whole story that P. W.3 witnessed the murder of his father and other relations from inside the cow shed or ox shed was an act of imagination on his part. In support thereof the sketch map (Ext.13) of the P. O. prepared by the I. O. was referred to which did not mention the existence of any such cow shed. P. W.3 denied the defence suggestion that Chintaman had no cow shed there. The I. O. (P. W.25) admitted having gone to the house of Rambilash Yadav and had seen his Bailghara (cow shed) adjacent south of his house. The I. O. first stated that he did not remember if he had gone in the bailghara or not and no body taken him there. He, however, conceded that he had seen the Bailghara on 30.5.87 itself but had forgotten to mention it in the case diary although he had understood the importance of Bailghara in the process of investigation. In view of all this no significance could attach to the fact that the sketch map of the p. O. prepared by the I. O. did not indicate the location of the Bailghara. In view of all this no significance could attach to the fact that the sketch map of the p. O. prepared by the I. O. did not indicate the location of the Bailghara. There is nothing in the evidence of the I. O. that a person hiding in the Bailghara could not have witnessed what happened inside the Khand of lakhan including near the Banyan tree which stood in the Khand. From the evidence of P. W.3 it is evident that the khand was forty to fifty feet long north to south and the cow shed of Chintaman was further north of the Khand. There is nothing to doubt the existence of doors and windows in the cow shed peeping through which P. W.3 witnessed the occurrence inside the Khand of near about the said place. Since P. W.3 escaped from the north east corner of the Khand and ran further north, that easily explains why he was not sighted by those who came towards the khand from south. Since the houses were set on fire and P. W.3 was watching the occurrence from a close distance, there was no question of any paucity of light in which he could not have identified the appellants in course of the occurrence. In this connection all that needs to be mentioned is that the I. O. had found the Banyan tree only ten or twelve feet south of the house of Rambilash Yadav. 36. Learned counsel for the appellants described it as highly improbable that a child of 8 years would continue watching the murder of his father, mother and other relations in a very brutal manner. It was pointed out that in such a situation the natural conduct of the child would be to close his eyes and completely conceal himself to avoid any chance of detection. Different people including the children act differently in a given situation. From the manner in which P. W.3 stood the test of cross-examination and gave answers in a straightforward manner clearly indicates that he is much above the average intelligence associated with children of his age. The children are curious by nature and if p. W.3 had the opportunity of watching what was happening out side with a reasonable certainty that his presence would not be detected in the cow shed where he had hid himself, there was nothing unusual in his conduct. The children are curious by nature and if p. W.3 had the opportunity of watching what was happening out side with a reasonable certainty that his presence would not be detected in the cow shed where he had hid himself, there was nothing unusual in his conduct. Moreover, he did admit that at a certain stage he got frightened and fled to the house of Ramkeshwar Dusadh. In view of all this there is no good reason to disbelieve the claim of P. W.3 that he witnessed the occurrence from the cow shed of Chintaman Yadav. 37. The evidence of P. W.1 has been described as unreliable and not worthy of providing any corroboration to the testimony of P. W.3. A number of infirmities were pointed out on behalf of the appellants which the court below had completely ignored while relying on the testimony of P. W.1. in so far it corroborated the claim of P. W.3 that he narrated the occurrence to him and named the appellants. It was pointed out that the statement of P. W.1 Sheonandan mochi alias Shiva Mochi was recorded by the police on 18.7.87 i. e. after more than 1? months of the alleged occurrence. It was argued on behalf of the State that mere delay in recording the statement of the witnesses by the police is not a sufficient ground for discarding the evidence of the witness if the delay is properly explained and there was nothing on the record to indicate that the delay was deliberate for the purpose of tutoring the witness and putting a particular statement in his mouth. P. W.1 explained in course of the cross-examination that he returned to the village after one month and four days of the occurrence. He explained it by saying that he stayed at his sisters house at Shiwaganj for four days and thereafter went to his brothers place who worked in a colliery in Katras where he stayed for about one month and four days. It is in the evidence of P. W.1 that other members of his family had also fled away from the village Baghaura after the occurrence. Some of the members of his family went to the place of his brother while some of them went to their mothers home and to other places of members of the family. It is in the evidence of P. W.1 that other members of his family had also fled away from the village Baghaura after the occurrence. Some of the members of his family went to the place of his brother while some of them went to their mothers home and to other places of members of the family. There is, therefore, ample evidence on the record that P. W.1 after the occurrence was not available in the P. O. village for more than a month. It was not surprising for considering the magnitude of the carnage the villagers were in a panic and not only P. W.1 but all the members of his family had deserted their house. The I. O. (P. W.25) had come to know about Sneonandan Mochi (P. W.1) being a witness in the case during the recording of the statement of P. W.3. on 7.6.87. The I. O. had searched for P. W.1 but came to know that he had gone out somewhere. The I. O. in fact searched for P. W.1 in the village in course of which it was disclosed that he had gone outside. Since there is nothing on the record to suggest that the I. O. knew the whereabouts of P. W.1 after the occurrence the delay in recording the statement of the witness by the police cannot give any cause to believe that the delay was deliberate on the part of the i. O. with a view to record a statement favourable to the prosecution. The testimony of P. W.1 in court could not, therefore, be discarded on the ground of so called delay in recording of his statement by the police and the trial court was thus right in not doing so. 38. The trial court while considering the credibility of P. W.1 rightly noticed the fact that P. W.1 was a disinterested witness. He belonged to a different caste. His house in the P. O. village was not set on fire. None of his relations was either killed or injured during the carange. In other words he had not suffered any injury or harm during the incident in any manner whatsoever. He had supported the prosecution case as an eye witness before the police. Some of the accused persons including some of the appellants had threatened him with dire consequences if he deposed in the case. In other words he had not suffered any injury or harm during the incident in any manner whatsoever. He had supported the prosecution case as an eye witness before the police. Some of the accused persons including some of the appellants had threatened him with dire consequences if he deposed in the case. The witness was bold enough to state all this in course of his evidence. The witness had in fact made a complaint in writing to the authorities regarding the threat held out to him by the accused persons. The witness displayed rare courage of conviction when he told the accused persons that he would state the truth. While being examined as a witness in the court he refused to support the prosecution case as an eye witness and denied having supported the prosecution case as an eye witness of the occurrence before the police. It was on this score that the witness was declared hostile by the prosecution. P. W.1 nonetheles supported the testimony of P. W.3 that both had met after the occurrence and P. W.3 had narrated the occurrence to him and had named the appellants responsible for the murder of his father, mother, sisters and one gaya Singh. It was argued that the testimony of P. W.1 should be discarded as a whole for even the prosecution had chosen to declare him hostile and cross-examine him. In this connection a reference may be made to a decision of the Apex court in khujji V/s. State of M. P. (A. I. R.1991 S. C.1853 ). A. M. Ahmadi, J. (as his Lordship then was and presently the Hon ble Chief justice) speaking on behalf of the three judge Bench observed, to quote : - "it seems to be well settled by the decision of this court -Bhagwan Singh V/s. State of Haryana, (1976) 2 S. C. R.921 : (A. I. R.1976 S. C.202); Rabinder Kumar dey V/s. State of Orissa, (1976) 4 SCC 233 : ( AIR 1977 SC 170 ) and Syed Akbar V/s. State of Karnataka, (1980) 1 SCR 95 : ( AIR 1979 SC 1848 ) - that the evidence of a prosecution witness cannot be rejected in toto merely because the prosecution chose to treat him as hostile and cross-examined him. The evidence of such witness cannot be treated as effaced or washed off the record altogether but the same can be accepted to the extent their version is found to be dependable on a careful scrutiny thereof. " Thus the testimony of P. W.1 cannot be entirely brushed aside only because the prosecution had treated him as a hostile witness and it can be accepted to the extent his version is found to be dependable after careful scrutiny. 39. It was argued that the failure of p. W.1 to mention his conversation with P. W.3 about the occurrence in his statement before the police created serious doubts regarding the truth of his testimony in court. P. W.1 claimed to have stated before the police that he had enquired from P. W.3 whether or not he had seen the occurrence and P. W.3 had thereafter narrated the occurrence and named the appellants. The i. O. (P. W.25) denied that P. W.1 made any such statement before him although he admitted that the witness had told him that he had learned from Ramkeshwar Dusadh that the boy whom he identified as P. W.3 had come with him (Ramkeshwar Dusadh) to bangore at night. The I. O. (P. W.25)recorded the statement of P. W.1 on 18.7.87 as an eye witness of the occurrence. The names of the appellants had already been disclosed in the statement of P. W.3 recorded on 7.6.87 in the circumstances the importance of the conversation between p. Ws.1 and 3 regarding the occurrence in which P. W.3 named the appellants in ail probability was relegated to the back ground. In course of his deposition the I. O. made a number of admissions which did not impress the trial court and it had adversely commented upon the manner in which he had conducted the investigation. Even if one did not go as far as the trial court to doubt the honesty of P. W.25 while investigating the case, a feeling cannot be avoided that the investigation of the case was not done in an efficient manner. The i. O. , it appears, did not attach any importance to the conversation between P. Ws.1 and 3 regarding the occurrence and that explains his failure to put any question to p. W.1 in that regard. The i. O. , it appears, did not attach any importance to the conversation between P. Ws.1 and 3 regarding the occurrence and that explains his failure to put any question to p. W.1 in that regard. Even assuming that p. W.1 did not say a word about his conversation with P. W.3 to the police, although he asserts he did, it was at best an omission which did not amount to contradiction considering that P. W.1 in his statement before the police mentioned about his meeting with P. W.3 on the morning of 30.5.87 at bangore in the company of Ramkeshwar dusadh. The evidence of P. W.1 read as a whole has a ring of truth and there appears no good reason why that part of his testimony which finds ample support from the testimony of P. W.3 i. e. with regard to the conversation that took place in between them regarding the incident ought not to be relied upon. It has already been noticed that the witness was a disinterested witness and the delay in recording of his statement by the police has been satisfactorily explained. All that was suggested to P. W.1 in the cross-examination to discredit his testimony was that Ramdin (P. W.2) had managed to provide him work on daily wages. The witness denied this suggestion as also another suggestion that he had been working in the Forest Department at Gaya on daily wages from before 29.5.87 and used to live at the place of P. Ws.2 and 4. The witness described all these suggestions as false. A suggestion made and denied is no proof of the fact suggested. Thus the credibility of P. W.1 could not be impeached by the defence in course of his testimony and he appears to be a truthful witness. 40. It was next argued that the non-examination of Ramkeshwar Dusadh and guruji was fatal to the prosecution case. P. W.3 had fled to the house of Ramkeshwar dusadh while the occurrence was in progress and immediately thereafter he had left the village in the company of Ramkeshwar dusadh and members of his family. They had spent the night at Bangore in the house of one Guruji. Since P. W.3 did not narrate the occurrence to Guruji, his non-examination has no significance. P. W.3 had narrated the occurrence to Ramkeshwar dusadh. They had spent the night at Bangore in the house of one Guruji. Since P. W.3 did not narrate the occurrence to Guruji, his non-examination has no significance. P. W.3 had narrated the occurrence to Ramkeshwar dusadh. P. W.1 had met P. W.3 and ramkeshwar at Bangore in the morning of the occurrence. It is in the evidence of P. W.1 that he had spent that night of the occurrence in the orchard of Lakhan Pasi and while going to Madanpur in the morning he had met Ramkeshwar and P. W.3 in Bangore basti situated at a distance of about 1-1? Kms. It was there that Ramkeshwar had asked P. W.1 to take P. W.3 somewhere. Ramkeshwar was thus described as the link man between P. RWs.1 and 3. The trial court has given good reason not to draw any adverse inference against the prosecution for the non-examination of Ramkeshwar Dusadh. The I. O. (P. W.25) first denied to have recorded the statements of Ramkeshwar dusadh and other members of his family in course of investigation, although he stated that they all belonged to village Bughaura. However, he immediately corrected himself and stated that he had recorded the statement of Ramkeshwar Dusadh on 18.7.87. That Ramkeshwar Dusadh was not cited as a charge-sheet witness by the I. O. has been adversely commented upon by the trial court. The trial court has likewise adversely commented upon the counduct of the Spl. P. P. in not taking steps to summon and examine ramkeshwar Dusadh as a witness in the case. On behalf of the appellants it was pointed out that even Lakhan Singh alias ramlakhan Singh (P. W.19) to whom P. W.3 claimed to have narrated the occurrence and named the appellants on the morning of 30.5.87 did not say a word in respect thereof. It may be recalled that according to p. W.1 and P. W.3, P. W.3, had returned to the P. O. village on the morning of 30.5.87 along with Ramlakhan Singh (P. W.19) on his tractor. Even P. W.4 had seen P. W.3 reaching the village on the tractor along with P. W.19. P. W.19 belonged to village baghaura but had close connections with village Canbehri where he had received tarhka i. e. property received through gift. Even P. W.4 had seen P. W.3 reaching the village on the tractor along with P. W.19. P. W.19 belonged to village baghaura but had close connections with village Canbehri where he had received tarhka i. e. property received through gift. He denied having made any statement before the police although his house was looted and some of his near relations were killed in the carnage. He was declared hostile and in the cross-examination denied having made aby statement before the police that he had gone to Canbehri on the date of occurrence. In the cross-examination by the defence he admitted to have learned about arson and carnage at Canbehri. Not a word was put to him either by the prosecution or the defence regarding the story that P. W.3 had accompanied him to the P. O. village in the morning on his tractor. Both the prosecution and the defence may have their own reasons not to put any such questions to the witness. Mere silence of P. W.19 who for reasons best known did not support the prosecution case would not be enough to disbelieve p. W.3 for P. W.1 had spoken about P. W.3 being handed over to PW.19 and P. W.4 that P. RWs.3 and 19 were seen reaching the p. O. village on the morning of the occurrence. That Ramlakhan (P. W.19) was present in the P. O. village on the morning of 30.5.87 is also borne out by the fact that he had helped the I. O. in identifying the dead bodies and inspecting the place of occurrence. Thus the non-examination of Ramkeshwar dusadh and the silence of P. W.19 on the point of his meeting and talk with p. W.3 do not affect the credibility of either p. W.1 or P. W.3. 41. The defence adduced evidence to prove the plea of alibi put forward on behalf of A-1, 3, 4 and 8. D. Ws.1, 6, 8, 9 and 10 had been examined to prove the presence of a-3 and 8 at Aurangabad on the alleged date of occurrence from 7 to 11 p. m. These defence witnesses claim to be tenants during the relevant period in the house of keshwar Yadav (A-3) which is situated in mohalla Ramdiha near S. N. Sinha College at Aurangabad. D. W.12 was examined to say that he appeared at an examination with Rajaram Yadav (A-1) on 29.5.87. D. W.12 was examined to say that he appeared at an examination with Rajaram Yadav (A-1) on 29.5.87. A truck owner D. W.5 was examined to prove the plea of alibi on behalf of Jagnarain yadav (A-4 ). The trial court considered the evidence and after close scrutiny rejected them for good and valid reasons. The trial court rightly did not attach any importance to Exts. C and D filed on bahalf of Rajaram yadav (A-1) to prove that on the date of occurrence A-1 had appeared in his examination. As rightly noticed by the trial court the programme of the examination was not produced and in the absence of any documentary evidence oral testimony could not be considered reliable. To be fair to the appellants it must be placed on record that the defence evidence in respect of the plea of alibi of some of the appellants was not even referred to in course of hearing of the appeal and such evidence was referred to only after the close of arguments by both the appellants and the State and that also in reply to courts query. Even if the plea of alibi on behalf of A-1, 3, 4 and 8 had been pressed in course of hearing of the appeal it would not have made any difference in view of the fact that the evidence adduced in course of the trial in respect of such a plea was wholly unsatisfactory and had been rightly discarded by the trial court. 42. Thus on a close scrutiny of the facts and circumstances appearing in the evidence on the record, there appears no reason whatsoever to doubt the testimony of the solitary child eye witness Shailendra singh (P. W.3 ). There are no major contradictions or omissions in the statements of P. W.3 before the police. All that is missing therein are some detailed description of the occurrence given by the witness in court. Some of the details came to be recorded in course of answers given by him while replying to questions put during the cross-examination. The failure of the I. O. (P. W.25) to notice the remains of the chouki on which P. W.3 was sitting or the radio/transistor which his father Sitaram singh (deceased) was playing at the time of the occurrence has been satisfactorily explained by the trial court. The failure of the I. O. (P. W.25) to notice the remains of the chouki on which P. W.3 was sitting or the radio/transistor which his father Sitaram singh (deceased) was playing at the time of the occurrence has been satisfactorily explained by the trial court. Moreover, the I. O. had inspected the P. O. a week before recording the statement of P. W.3 and had thus no hint whatsoever of their importance at the time of inspection of the P. O. The fact cannot be ignored that when so many houses have been reduced to ashes a burnt chouki by itself could not have attracted the attention of the I. O. In so far as the radio/transistor is concerned, it was a tinny object which could have been easily removed by any one. Otherwise also the i. O. had no reason whatsoever to attach any special importance to it when a large number of articles had been looted from inside the houses. The evidence of P. W.3 is corroborated in material particulars by the evidence of an independent witness sheonandan Mochi alias Shiva Mochi (P. W.1 ). It is also corroborated by the objective findings recorded by the I. O. in course of local inspection of the P. O. including the location of the dead bodies of such of the deceased whose murders had been witnessed by P. W.3. The result of autopsy noted by the Doctors (P. Ws.10 and 12) in respect of those deceased also go to corroborate to a large extent the testimony of p. W.3. The learned Addl. Sessions Judge was thus right in relying on the testimony of p. W.3. In view of its corroboration by other evidence on the record when he recorded a finding and held that Gaya Singh (deceased) was murdered by Babu Ram yadav (A-2) and Chandradeep Yadav (A-7), sitaram Singh (deceased), by Brahamdeo yadav (A-6) and Nagdeo Yadav, wife of sitaram Singh (deceased) by Ram Pravesh yadav (A-8), Renu Kumari (deceased) by jag Narayan Yadav (A-4) after she was caught by Keshwar Yadav (A-3), Giranti kumari (deceased) by Chintaman Yadav (A-5) and Rita Kumari (deceased) by Rajaram yadav (A-1 ). Accused Nagdeo Yadav was given the benefit of doubt and acquitted on account of some doubt regarding his identification by the solitary eye witness P. W.3 in the court. 43. The learned Addl. Accused Nagdeo Yadav was given the benefit of doubt and acquitted on account of some doubt regarding his identification by the solitary eye witness P. W.3 in the court. 43. The learned Addl. Sessions Judge has convicted A-1 and 2 under sections 302/34 I. P. C. and A-3, 4, 5, 6, 7 and 8 under section 302 I. P. C. for the said murders. On the evidence adduced and which the learned Addl. Sessions Judge had relied upon both A-2 and 7 had murdered Gaya singh and Sitaram Singh was murdered by a-6 with the help of another. Likewise Renu kumari was murdered not by A-4 alone but after she was caught hold of by A-3. Moreover, A-1 was alone responsitle for committing the murder of Rita Kumari. In view of the evidence on the record it is for consideration whether A-1 was liable for conviction under Sec.302 I. P. C. instead of one under Sections 302/34 I. P. C. It has also to be considered whether A-3 could be held liable under Sec.302 I. P. C. for which he has been conviced when on the allegations made he had only caught Renu kumari before she was murdered by A-4. Likewise could A-6 be convicted under section 302 I. P. C. when on the evidence adduced he had committed the murder of sitaram Singh with the help of another, since acquitted. It appears that all the appellants except Babu Ram Yadav (A-2) had been charged for the substantive offence under section 302 I. P. C. for committing the murders of Sitaram Singh, Sumitra Devi, renu Kumari, Rita Kumari, Manita alias giranti Kumari. Babu Ram Yadav (A-2) was among the 74 accused persons including the remaining appellants who had been charged for the murder of the 26 deceased u/s.302 read with section 149 I. P. C. which included Gaya Singh (deceased) also. According to P. W.3 both A-2 and 7 had cut gaya Singh (deceased) by means of Tangi. The post-mortem report (Ext.2/19) of Gaya singh, however, indicates the presence of an incised wound in front of neck measuring 8" x 3" x bone deep. The inquest report (Ext.5/21) also mentions neck chopped with sharp weapon as the cause of death. According to P. W.3 both A-2 and 7 had cut gaya Singh (deceased) by means of Tangi. The post-mortem report (Ext.2/19) of Gaya singh, however, indicates the presence of an incised wound in front of neck measuring 8" x 3" x bone deep. The inquest report (Ext.5/21) also mentions neck chopped with sharp weapon as the cause of death. It is quite probable that although p. W.3 saw both A-2 and 7 attacking Gaya singh by means of Tangi, he was unable to describe as to whose blow resulted in chopping of the neck. The Doctor (RW.12)who conducted the postmortem examination on the body of Gaya Singh has also testified to the presence of one incised wound in front of the neck. Thus since both a-2 and 7 had attacked Gaya Singh and only one of them was able to chopp of the neck, both would be liable for conviction u/ss.302/34 I. P. C. The conviction of A-2 u/ss.302/34 I. P. C. is thus maintained and that of A-7 u/s.302 I. P. C. is converted to one u/ss.302/34 I. P. C. Since A-1 was solely responsible for committing the murder of rita Kumari he was liable to be convicted u/s 302 I. P. C. for the said murder and his conviction u/ss.302/34 I. P. C. is, therefore, converted to one u/s.302 I. P. C. The conviction of A-4, 5 and 8 u/s.302 I. P. C. is maintained. Since A-6 committed the murder of sitaram Singh (deceased) with the help of another his conviction u/s.302 I. P. C. is converted to one u/ss.302/34 I. P. C. Since A-3 had only caught Renu Kumari before she was murdered by A-4, his conviction u/s.302 i. P. C. in converted u/s.302/34 I. P. C. To sum up the conviction of the appellants is modified to the extent that while A-1, 4, 5 and 8 are convicted u/s.302 I. P. C. , A-2, 3, 6 and 7 are convicted u/ss.302/34 I. P. C. 44. There was some argument at the bar as to whether or not the appellants had been convicted u/ss.302/149 I. P. C. for committing the murders of the other deceased persons. Counsel for the appellants argued that no such conviction had been recorded by the trial court. The State, however, took the opposite view and in support of its contention referred to the observations of the trial Judge in that regard. Counsel for the appellants argued that no such conviction had been recorded by the trial court. The State, however, took the opposite view and in support of its contention referred to the observations of the trial Judge in that regard. The question assumes significance in view of the submissions made on behalf of the appellants that they had been convicted for murder with regard to particular deceased persons and not for all the 26 deceased who were killed on the date of the occurrence and the enormity of the crime could not be considered as a relevant factor for deciding the questions whether the death sentence inflicted by the Addl. Sessions Judge was called for. It is not in dispute that all the appellants were among the accused preson he had charged for having committed the 26 murders in prosecution of the common object of the unlawful assembly. The learned Addl. Sessions Judge convicted the appellants under section 148 I. P. C. and also under sections 436/149 I. P. C. for the arson committed. The appellants were on the findings recorded members of an unlawful assembly the common object of which was to commit arson and murders. It is true that the accused persons other than the eight appellants were acquitted of the charges u/ss.302 and 436 both read with section 149 i. P. C. They were acquitted because of lack of evidence regarding their participation in the crime. Their acquittal did not cast any doubt with regard to the prosecution case that a large number of persons including the appellants took part in the occurrence and committed the murders and set the houses on fire. The learned Addl. Sessions judge did not acquit the appellants of the charge u/s.302/149 I. P. C. and specifically mentioned that all other accused persons other than those found guilty which obviously refers to the appellants are acquitted of the charge u/ss.302/149 and 436/149 I. P. C. It is possible that the trial court having convicted the appellants u/ss.302 and 302/34 I. P. C. did not consider it necessary to record a finding of their guilt in respect of the charge u/ss.302/149 I. P. C. in so many words, but the same is implicit from the judgment if it is read as a whole. On the evidence adduced and relied upon by the trial court such a conclusion cannot be avoided. On the evidence adduced and relied upon by the trial court such a conclusion cannot be avoided. From the evidence of both pws.1 and 3 it is clear that a large number of persons raided the village from the south. The objective findings recorded by the I. O. after making local inspection of the p. O. and other evidence on the record provided beyond doubt that only the houses of Rajputs had been set on fire and only the members of the said community had been killed in course of the occurrence. It may be mentioned that out of 26 deceased 25 belonged to the Rajput community and only one Kesho Ram who was the tractor driver belonged to another community. It was on the basis of such evidence which could not be assailed on behalf of the defence that the trial court held the appellants responsible for committing mischief by fire by setting the dwelling houses on fire and proceeded to convict them for the offence u/s.436 read with section 149 I. P. C. The conviction of the appellants by the trial court for the offence of rioting u/s.148 I. P. C. had also proceeded on the basis of their being members of the unlawful assembly. The trial court was right in its approach for on the evidence adduced the appellants were members of the unlawful assembly, the common object of which was to commit murders and mischief by fire and for which they along with other accused persons were formally charged. The accused persons other than the appellants were acquitted only for want the sufficient evidence of their identification as participants in the crime. There was evidence on the record that the unlawful assembly consisted of not only the appellants but a large number of persons. The murders of all the 26 deceased and setting the houses on fire took place in course of the same transaction. Thus even though there is no direct evidence that the appellants or any one of them set the houses on fire and committed murders of deceased persons other than those six deceased testified to by P. W.3 there was ample evidence on the record that all the eight appellants were members of the unlawful assembly the common object of which was to commit the murders and arson. Thus all the eight appellants had been found guilty u/ss.302/149 and 436/149 I. P. C. The trial court, however, formally, recorded their coviction for the offence u/s.436/149 I. RC. but inadvertently failed to specifically record their conviction for the offence u/s.302/149 I. RC. also. No separate sentence was passed against them for the said offence for the obvious reason that all the appellants had been convicted and sentenced to death for the offence u/ss.302 and 302/34 I. P. C. 45. This brings us to the consideration of the most important question whether the death sentences awarded to the appellants should be affirmed or be commuted to life imprisonment? It was argued on behalf of the appellants that in view of the direct evidence of participation of each appellant with regard to the murder of only one deceased and there being complete absence of any evidence that any of the appellants was directly involved in the murder of the rest of the accused, the case of each of the appellants ought to be considered separately in so far the punishment is concerned. It being so, the argument is that the case of each of the appellants could not be described to be in the category of the rarest of rare cases to warrant the death sentence. It was pointed out on behalf of the State that the appellants had been found guilty not only u/s.302 or u/s.302 read with Sec.34 I. P. C. for the murder of a particular deceased but also u/s.302 read with section 149 I. P. C. for the murder of the rest of the deceased persons. The State defended the death sentences awarded by the trial court on the ground that it was a rarest of rare cases in which the gravest of grave crimes was committed and sentence of life imprisonment to those who were proved to have perpetrated the crime instead of death sentences would have been revolting to the conscience of the court. 46. A five judges constitution Bench of the Apex court in Bachchan Singh V/s. State of Punjab (A. I. R.1980 S. C.898) while examining the constitutional validity of the death sentence had made certain observations including one that the death sentence should be awarded in the rarest of rare cases. 46. A five judges constitution Bench of the Apex court in Bachchan Singh V/s. State of Punjab (A. I. R.1980 S. C.898) while examining the constitutional validity of the death sentence had made certain observations including one that the death sentence should be awarded in the rarest of rare cases. The principles laid down by the constitution Bench were further elucidated by the court in Machhi Singh V/s. State of Punjab (A. I. R.1983 S. C.957 ). In Machhi Singhs case (supra) the Apex court referred to the guidelines indicated in Bachan Singhs case (supra) and observed that the following propositions emerged from that case : - (i) The exterme penalty of death need not be inflicted except in gravest cases of extreme culpability : (ii) Before opting for the death penalty the circumstances of the offender also required to be taken into consideration along with the circumstances of the crime; (iii) Life imprisonment is the rule and death sentence is an exception. In other words death sentence must be imposed only when life imprisonment appears to be an altogether inadequate punishment having regard to the relevant circumstances of the crime, and provided, and only provided, the option to impose sentence of imprisonment for life cannot be conscientiously exercised having regard to the nature and circumstances of the crime and all the relevant circumstances; (iv) A balance sheet of aggravating and mitigating circumstances has to be drawn up and in doing so the mitigating circumstances has to be accorded full weightage and a just balance to be struck between the aggravating and the mitigating circumstances before the option is exercised. " Their lordships then proceeded to observe that in order to apply these guidelines, inter-alia, the following questions may be asked and answered : - (a) "is there something uncommon about the crime which renders sentence of imprisonment for life inadequate and calls for a death sentence? (b) Are the circumstances of the crime such that there is no alternative but to impose death sentence even after according maximum weightage to the mitigating circumstances which speak in favour of the offender?" 47. The trial court rightly noticed the legislative changes brought about by section 354 (3) Cr. (b) Are the circumstances of the crime such that there is no alternative but to impose death sentence even after according maximum weightage to the mitigating circumstances which speak in favour of the offender?" 47. The trial court rightly noticed the legislative changes brought about by section 354 (3) Cr. P. C. requiring the court to record special reasons for awarding the death sentence It also took note of the fact that life imprisonment is the rule and the death sentence as exception in a case of murder and that sentencing an accused is a sensitive exercise of discretion and not a routine matter to be approached in a mechanical manner. The trial court, it appears pronounced the sentences of death more than a month after convicting the appellants. The appellants filed a number of affidavits claiming that none of them had any criminal antecedent and they were all first offenders. Rajaram Yadav A-1 claimed to have studied up to B. A. On behalf of babu Ram Yadav A-2 it was submitted that he was studying in a law college and had recently married. Ramkeshwar Yadav A-3 and Ram Pravesh Yadav A-8 were both described as agriculturist having sufficient landed property and one of their brothers is said to be a soldier in the Indian Army. A-8 was also said to be a patient of certain stomach disease and in proof of which some medical certificates had been filed. While A-3 was said to be running a school in his house, A-8 was said to be a Village health Worker as also the President of chakriya Vikas Yojna and doing social work. Jug Narayan Yadav A-4 was earning his livlihood as a truck driver having four childern with none to look after them. Chintaman Yadav A-5 is the father of A-1 and that there is no one to look after his (A-5)father Ram Bilas Yadav an old man of 85 years. Brahamdeo Yadav A-6 was described as a young man and the sole earning member of his family with no one else to look after his four childern. Chandradeep Yadav a-7 was described as very young being 20-22 years of age. Brahamdeo Yadav A-6 was described as a young man and the sole earning member of his family with no one else to look after his four childern. Chandradeep Yadav a-7 was described as very young being 20-22 years of age. The learned trial court after hearing the learned counsel for the accused-convicts and the State and after considering the principles, proceeded to impose the death sentences against the appellants with these observations : - "as has already been mentioned offenders belong to a particular caste and belong to the same village where murders were committed.26 murders were committed out of which 24 belong to baghora Village of which the offenders belong and two deceased belong to kanbehri. Out of 26 deceased 25 belong to the one caste and the main aim of the offenders was to wipe out all the persons male, female and children whoever they may be of this particular caste from the village by way of retaliation and therefore they came in large numbers, surrounded the village and committed murders in the manner butcher butchers he goats or she goats and even boy aged two years was also not spared. Offenders did not touch the men of their caste nor their houses but they committed murder of a particular caste only and then it appears that they had planned from before to commit this sort of crime in such a mass scale. " Though the trial court did not say in so many words, it did not find any mitigating circumstances and after noticing the aggravating circumstances proceeded to award the death sentences. Young age or for that matter being the sole earning member of the family or that the appellants had no criminal antecedents may be considered mitigating circumstances. But even if they were treated as mitigating circumstances and given due weight the aggravating circumstances were such that while balancing both the mitigating and aggravating circumstances of both the crime and the criminals, the scale tilted heavily in favour of the aggravating circumstances. 48 A large number of persons raided the village, picked up members of a particular caste to kill as many as 25 of them including infants, childern and women. They also chose the houses of members of the said caste to set on fire and reduce them to ashes. 48 A large number of persons raided the village, picked up members of a particular caste to kill as many as 25 of them including infants, childern and women. They also chose the houses of members of the said caste to set on fire and reduce them to ashes. Most of the persons killed were cut into pieces or their necks chopped off by sharp weapons. Some of them were thrown into the houses set ablaze and completely roasted. Two of the deceased were burnt beyond recognition. Those killed were all innocent people completely defenceless and had given no provocation whatsoever to their assailants. Their fault, if any, was that they belonged to a particular caste and the people who perperated the crime chose to liquidate all the members of the said caste from the village. The enormity of the crime is thus writ large and any attempt to balance the mitigating and aggravating circumstances of the crime or the criminals would be an exercise in futility. In fact there are no mitigating circumstances worth the name in this case. The statement holds true both in respect of the crime and those who committed it namely the appellants. If some incident had taken place prior to the occurrence in some neighbouring village in which member of the Rajput caste had allegedly murdered a few members of the Yadav caste, it could hardly be considered a mitigating circumstances in a case where the member of the Yadav caste chose to avenge the death of members of their caste by raiding the village and mercilessly killing a large number of members of the Rajput caste. The motive for the crime as suggested above is in fact an aggravating circumstances for the society was very much concerned that such caste warfare leading to murder and arson must be dealt with strongly with a view to prevent the occurrence of such incidents in future. The appellants have been proved to have actually participated in the cold blooded murder of atieast 6 persons including children committed under circumstances which could be described only as dastardly and diabolical. Under the circumstances it did not matter whether an appellant had been proved to have actually committed the murder of a particular deceased or he had only assisted another in doing so. Under the circumstances it did not matter whether an appellant had been proved to have actually committed the murder of a particular deceased or he had only assisted another in doing so. Each one of them was also liable u/s.302/149 I. P. C. for the murder of atieast two dozen persons. All those who participated in the crime deserve the same punishment and the trial court was in my opinion right in inflicting the death sentences against all the eight appellants. Punishment in a case of this nature must be adequate to nave the necessary impact on the contemporary society and it would be shocking to the conscience of the court if perpetrators of such crime were sentenced jo imprisonment for life instead of being sentenced to death. There is thus no doubt that the present case is in the category of the rare of rarest cases in which the only appropriate punishment for murder would be sentence of death. 49 It was argued on behalf of the appellants that the death sentences deserve to be commuted to imprisonment for life, if for no other grounds, then for the simple reason that there has been an inordinate delay in execution of the death sentences. The alleged occurrence had taken place in may 1987 i. e. some 8 years ago and the trial court had pronounced the death senfences in November 1992. Since the appellants had already suffered mental torture by remaining under the shadow of a death sentence for about 3 years, the death senfences ought to be commuted to life imprisonment on that score alone. Reliance was placed on a decision of the Apex Court in Bhagwan Bux Singh V/s. State of U. P. (A. I. R.1978 S. C.34) where the court after upholding the conviction for murder proceeded to commute the death sentences to life imprisonment in the peculiar circumstances of the case as also in view of the fact that the appellant was sentenced to death 2? years ago. A two judge Bench of the Apex court in A. I. R.1983 S. C.361 (2)had held that the delay exceeding 2 years in the execution of a sentence of death should be considered sufficient to entitle the person under sentence of death to invoke Art.21 of the Constitution and damand the quashing of the sentence of death. years ago. A two judge Bench of the Apex court in A. I. R.1983 S. C.361 (2)had held that the delay exceeding 2 years in the execution of a sentence of death should be considered sufficient to entitle the person under sentence of death to invoke Art.21 of the Constitution and damand the quashing of the sentence of death. A three judge Bench of the Apex court in Sher Singh V/s. State of Punjab (A. I. R.1983 S. C.465) however took a different view and held that delay in execution of death sentence exceeding 2 years by itself does not entitle a person under sentence of death to demand quashing the sentence and converting it into sentence of life imprisonment. In Javeds case (A. I. R.1985 S. C.231) the Apex Court observed that a condemned man who had suffered more than 2 years and 9 months and was repenting and there was nothing against him in the jail records was entitled to communtation of his sentence of death into imprisonment for life. It was on account of the controversy regarding the commutation of death sentence to life imprisonment only on the ground of delay in its execution for a period of 2 years or more that the matter was referred to and considered by a five judges Bench of the court in Triveni Ben V/s. State of Gujrat (A. I. R.1989 S. C.1335 ). The controversy was set at rest by the Supreme court holding that no fixed period of delay could be held to make the sentence of death inexecutable and the earlier decision reported in A. I. R.1983 S. C.361 (2) laying down the "2 years" rule was overruled. The supreme Court proceeded to observe that undue long delay in execution of the sentence of death will entitle the condemned person to approach the Supreme Court under Art.32 but the Supreme Court will only examine the nature of delay caused and circumstances ensued after sentence was finally confirmed by the judicial process. In other words the only delay which would be material for consideration will be the delay in disposal of the mercy petitions or delays occurring at the instance of the executive. It is true that the death sentences against the appellants were pronounced against the appellants some 3 years ago. In other words the only delay which would be material for consideration will be the delay in disposal of the mercy petitions or delays occurring at the instance of the executive. It is true that the death sentences against the appellants were pronounced against the appellants some 3 years ago. The death sentences passed were subject to confirmation by the High Court and thus judicial process in the matter of trial and appeal had not come to an end. Thus the sentences of death passed against the appellants could not be commuted to life imprisonment on the ground of delay in execution of the death sentences. 50. It is true that more than 5 years were taken in the conclusion of the trial of the appellants by the trial court. Almost another 3 years were taken in hearing of the death reference. Considering the time ordinarily being taken in the disposal of the sessions cases in this State a period of 5 years may not be considered a very long one and more so when in the instant case as many as 74 accused persons were put on trial. The administration for reasons best known did not take sufficient interest in the prosecution of the trial and the trial court has occassion to make certaia adverse observations in this regard. Moreover, the responsibility for the delay in the conclusion of the trial did not entirely rest on the shoulders of the prosecution. From the order sheet dated 13.5.92 of the trial court it appears that the stage for the production of defence witnesses had arrived in september 1991 itself. The defence was asked to furnish the names of the defence witnesses on 7.9.91. But no such list was produced till 12.3.92. A large number of adjournments were granted to the defence to produce their witnesses and the court had proceeded to close the defence case after observing that the defence by its conduct wanted to linger the case. It appears that one of the accused namely appellant ramkeshwar Yadav filed a perition on 19.5.92 to the effect that he proposed to go in revision against the order of the court closing the defence case and fixing it for argument. It was in these circumstances that the trial court was persuaded to give another opportunity to the defence for examination of defence witnesses. It was in these circumstances that the trial court was persuaded to give another opportunity to the defence for examination of defence witnesses. It is also on record that some of the accused who were on bail failed to appear and consequently the trial court had issued warrant of arrest for securing their attendance. Thus in the matter of delay in the conclusion of the trial both the prosecution and the defence were equally liable. 51. Thus on a careful consideration of all the facts and circumstances of the case the prosecution case appears to be proved beyond reasonable doubt as against the appellants and the learned Addl. Sessions judge was thus right in his conclusion to that effect. The conviction of Jag Narayan yadav A-4, Chintaman Yadav A-5 and Ram pravesh Yadav A-8 u/s.302 I. P. C. and that of Babu Ram Yadav A-2 u/s.302/34 I. P. C. is up-held. The conviction of Rajaram Yadav a-1 u/s.302/34 I. P. C. is convicted to one u/s.302 I. P. C. and those of Keshwar Yadav @ Ramkeshwar Yadav A-3, Brahamdeo yadav A-5 and Chandradeep Yadav A-7 u/s.302 I. P. C. is converted to one u/s.302/34 i. P. C. The death sentences passed against each one of them is also confirmed. The conviction of appellants for the offences under sections 148 and 436/149 I. P. C. as also under Sec.302/149 are also upheld. No separate sentences were passed against them for these offences and in my opinion also there is no necessity to do so. 52. Subject to the aforesaid modifications both the criminal appeals are found without merit and are dismissed and the death reference accepted.