U. P. SINGH, J. This appeal has been placed before me under Section 392, Cr. P. C. on a difference of opinion between the two Honble Judges of this Court, Honble Justice Giridhar Malviya and Honble Justice Surya Prasad. Honble Justice Giridhar Malviya has dismissed the appeal preferred by the sole appellant Gurmit Singh, whereas Honble Justice Surya Prasad has allowed the appeal and set aside the judgment and order of the learned Additional Sessions Judge, Shahjahanapur arid, accordingly, reference No. 6 of 1992 regarding confirmation of death sentence awarded to Gurmit Singh has been rejected. 2. This relates to an incident which took place at 11 p. m. in the night of 17th August, 1986 at the residence of the family of the appellant Gurmit Singh known as jhala. This is located in the tarai region of this State, where persons belonging to the Sikh community, in particular, cultivated the land by clearing the large chunk of jungles. Generally, one family got one such accommodation for the entire family. In this incident, thirteen persons of the family were killed, who were sleeping and were the real and near relatives. Even the infants, innocent children aged about four years as also the ladies and the old men were killed. 3. Originally, three persons were put on trial, Gurmit Singh, Lakkha Singh and one Jawahar for the offences punishable under Section 302/307/34, I. P. C. by the police of Sehramau (north) police station district Shahjahanpur During trial, accused Lakkha Singh died and so the trial abated against him. Accused Jawahar (the servant of Gurmit Singh) was acquitted of the charges under Section 302 read with Section 34 I. P. C. and Section 307 read with Section 34, I. P. C. 4. Appellant Gurmit Singh was found guilty and convicted under Section 302, I. P. C. for committing the murder of Man Singh, Karam Singh, Surjit Singh, Ranjit Singh and Nazir Singh. He was further convicted under Section 302/34, I. P. C. for committing the murder olrichpal Singh, Pamma, Km. Kanti, Km. Pammi, Km. Akki, Rajvendar Kaur, Smt. Sita and Sml. Bhajan Kaur. He was also convicted under Section 307, I. P. C. for attempting to commit murder and causing injuries to Balvendar Singh as also under Section 307/34, I. P. C. in attempting to commit murder and causing injuries to Km. Biro. Kanti, Km. Pammi, Km. Akki, Rajvendar Kaur, Smt. Sita and Sml. Bhajan Kaur. He was also convicted under Section 307, I. P. C. for attempting to commit murder and causing injuries to Balvendar Singh as also under Section 307/34, I. P. C. in attempting to commit murder and causing injuries to Km. Biro. He was sentenced to death by the Additional Sessions Judge, Shahjahanpur under Section 302 read with Section 34, I. P. C. He was further sentenced to undergo ten years rigorous imprisonment under Section 307, I. P. C. and under Section 302 read with Section 34, I. P. C. The learned Additional Sessions Judge referred the case to the High Court for confirmation of the death sentence. 5. Against the said judgment of the learned Additional Sessions Judge, Shahjahanpur, in Sessions Trial No. 37 of 1987, one Criminal Appeal No. 1333 of 1992 was preferred by the sole appellant Gurmit Singh. However, no appeal was preferred by the State against the order of acquittal of accused Jawahar passed by the learned Additional Sessions Judge. 6. According to the prosecution, Nazir Singh, the head of the family had four sons named Karam Singh, Man Singh. Balvendar Singh and Gurmit Singh. He had set up one such jhala in village Rampur Pipariya Police Station Sehramau (north ). This jhala had three sets of two rooms each running west to east. In the two rooms on the western side, Karam Singh lived along with his family and in the other eastern portion, Nazir Singh along with the family of his sons Man Singh and Balvendar Singh used to reside. Accused Gurmit Singhs room was on the other side of jhala. In front of their respective rooms there was an open land. About a year prior to the incident, accused Gurmit Singh was married. After marriage, co-accused Lakkha Singh, who died during the trial, used to visit Gurmit Singhs wife even during his absence, which was not relished by Nazir Singh, the head of the family. Consequently, Nazir Singh and his other sons ridiculed Lakkha Singh and told accused Gurmit Singh that Lakkha Singh was not a man of good character. They asked Gurmit Singh not to allow Lakkha Singh to live in the house. This was not liked by Gurmit Singh and his companion Lakkha Singh and they became angry with Nazir Singh and his other sons. They asked Gurmit Singh not to allow Lakkha Singh to live in the house. This was not liked by Gurmit Singh and his companion Lakkha Singh and they became angry with Nazir Singh and his other sons. It has further come in the evidence that Gurmit Singh (the appellant) Lakkha Singh and Jawahar (servant of Gurmit Singh) abused Nazir Singh and his family members. 7. In the night of the incident intervening 17/18th August, 1986 Nazir Singh was sleeping at the tubewell located at some distance from their jhala towards south. Karam Singh, his wife Bhajan Kaur and son Paramjit (P. W 2) were sleeping on the roof of their room, Surjit Singh, Ranjit Singh and Ranjit Kaur, three children of Karam Singh, were sleeping in the room down below. In the adjoining portion the other son of Nazir Singh named Man Singh, his wife Surjit Kaur and their four children, Richpal, Akki, Kanti and Pammi were sleeping in the court yard outside their room. Their three children Pammi, Km. Biro (P. Wl) and Rajvendar were sleeping inside the room. The third son of Nazir Singh, namely, Balvendar was ako sleeping in the same courtyard. At the relevant time, his wife had gone to her fathers place. Thus, it would appear that three persons were sleeping on the roof, three children each of Karam Singh and Man Singh were sleeping inside the room and Man Singh, his wife Surjeet, Baivendar and four children of Man Singh were sleeping in the courtyard outside their room. 8. From the evidence of the witnesses, it appears, that on the relevant date in the night intervening 17/18th August, 1986 at about 11 p. m. Gurmit Singh (appellant), the fourth son of Nazir Singh along with his associates Lakkha Singh and servant Jawahar arrived there and Gurmit Singh and Lakkha Singh were armed with naked swords. It was alleged that accused Jawahar was throwing brick-bats and asking those persons sleeping on the roof to come down, stating that they would not be spared. Accused Gurmit Singh (appellant) and Lakkha Singh assaulted and cut down the aforesaid persons who were sleeping. It was alleged that Gurmit Singh and Lakkha Singh had arrived there with a view to eliminate all the members of the family of Nazir Singh. Accused Gurmit Singh (appellant) and Lakkha Singh assaulted and cut down the aforesaid persons who were sleeping. It was alleged that Gurmit Singh and Lakkha Singh had arrived there with a view to eliminate all the members of the family of Nazir Singh. Paramjit Singh aged about 13-14 years (P. W. 2), his father and mother jumped down from the roof, they were murdered by Gurmit Singh and Lakkha Singh, and they caused injuries to Balvinder Singh aged about 22-23 years (P. W 3) and Km. Biro (P. W. 1) aged about 12 years. Thereafter, they went towards the tube-well where Nazir Singh was sleeping was sleeping and they murdered him also. 9. The occurrence was witnessed by Km, Biro (P. W. 1) aged about 12 years who was inside the room, Parmjit Singh aged about 13-14 years (P. W 2) who was on the roof and Balvendar Singh aged about 22- 23 years (P. W. 3) who was sleeping outside in the courtyards. Out of these three, Km, Biro (P. W. i) and Balvendar Singh (P. W 3) are the injured witnesses. The occurrence was witnessed by these witnesses in the light of the moon and a lamp (dibbi ). After the incident, village people arrived on the scene of occurrence on the hue and cry and thereafter Pramijtt Singh (P. W. 2) along with the villagers inspected the whole jhala and found that his mother, father, two brothers, his uncle Man Singh, wife of Man Singh and six children of Man Singh had been murdered by Gurniit Singh and Lakkha Singh by sword. The two injured Balvendar Singh (P. W. 3) and Km. Biro (P. W 1) were sent to Banda for the medical treatment by the neighbourers. Paramjit Singh (P. W. 2) aged about 13-14 years along with one Pardhan of the village named Mittar Singh went to the Police Station Sewa- mau (North) and first information report was lodged at the Police Station. The case was then registered under Sections 302 and 307, I. P. C. After registration of the case the Station House Officer as also other Police Officer rushed to the spot. On account of the gravity of the case when thirteen murders had been committed, some other Police Officers of the neighbouring Police Stations also rushed to the spot. 10. The then. On account of the gravity of the case when thirteen murders had been committed, some other Police Officers of the neighbouring Police Stations also rushed to the spot. 10. The then. Sub-Inspector of Police Sardar Singh conducted the inquest on the dead body of the deceased Richapal Singh, Akki, Kanti, Pamma Singh, Sita wife of Man Singh, Km. Pammi and Km. Kajendra Kaur and prepared the inquest report after observing all the necessary formalities. The then Sub-Inspector of Police, Dinesh Kumar conducted the inquest on the dead body of the deceased Nazir Singh, Man Singh and Karam Singh and prepared the inquest reports. The then Sub-Inspector of Police Hari Nandan Singh conducted the inquest on the dead body of deceased Ranjit Singh, Smt. Bhajan Kaur and Surjit Singh and prepared the inquest report after observing all other formalities. The dead bodies of these thirteen persons were sent to the District Hospital, Shahjahanpur for post-mortem examination. During the course of investigation accused Gurmit Singh and Lakkha Singh were arrested by the Officers of the Police Station Gola in the district of Lakhimpur Kheri. Accused Jawahar WK. S arrested by the Police of Police Station Banda. After completion of the investigation the charge-sheet was submitted by the Police of Police Station Sehramau (North) against the accused persons. 11. Dr. K. K. Srivastava (P. W. 4) conducted the post-mortem examination on the dead body of nine persons i. e. , Man Singh, Km. Pammi, Kanti, Richpal Singh, Pamma, Ranjit Singh, Smt. Bhajan Kaur, Surjit Singh and Nazir Singh and according to him all these rune persons died due to several injuries caused by a sharp edged weapon such as sword which was sufficient in the ordinary course of nature, to cause death and all these nine persons died due to those injuries and due to shock and haemorrhage. In the opinion of the doctor (P. W. 4) the injuries might have been caused on 17. 8. 1986 at 8p. m. 12. Likewise, Dr. U. D. Kapoor (P. W. 5) conducted the post-mortem examination on 19. 8. 1986 on the dead body of Akki (daughter of Man Singh), Smt. Sita (wife of Man Singh), Rajendra Kaur and Karan Singh. According to him, the injuries caused to these four persons were sufficient in the ordinary course of nature to cause death and might have been caused by sword. 8. 1986 on the dead body of Akki (daughter of Man Singh), Smt. Sita (wife of Man Singh), Rajendra Kaur and Karan Singh. According to him, the injuries caused to these four persons were sufficient in the ordinary course of nature to cause death and might have been caused by sword. In his opinion, the death of these persons would have taken place at about 11 p. m. on 17. 8. 1986. 13. Dr. Habit (P. W. 6) examined Km. Biro (P. W. 1) and found the following injuries on her body: " 1. Incised oblique wound on the both side of head 10. 5 cm. 1 cm. bone deep 6 cm. above the root of nose. 2. Incised would on the dorsal aspect of left hand extending towards the finger 7. 5 cm. 1. 5 cm. bone deep 6 cm. below the wrist joint, half of the little finger is completely cut off, ring finger is also cut and handing with skin flat. " According to the said witness these injuries might have been caused by a sharp edged weapon and at the time of examination they were about 11/2 days old. He has proved the injury report of Km. Biro (Ex. Ka. 15 ). (P. W. 7) Dr. Amar Lal examined the injuries on the body of Balvendar Singh and found the following injuries on his person: " 1. Incised wound 11 cm. . 1. 25 cm. depth not probed on the right side face head (lower) of mandible bleeding present. 2. Incised wound on right side of face 10 cm. x. 1 cm. x depth not probed above injury No. 1. Bleeding present. " According to the doctor the aforesaid injuries caused to Balvendar Singh were not of such a nature as to cause death at once. However, in case of excessive bleeding, death could be caused. He has proved the injury report of Balvendar Singh, which is Ex. Ka-16. He advised for x-ray. 14. Dr. B. P. Sharma, (P. W. 17) has proved the x-ray reports and x-ray plate of Km. Biro and Balvendar Singh. Two x-ray of Km. Biro were conducted in respect of her left hand and skull. 15. Dr. Sharma has also proved x-ray plates and the injury report of Balvendar Singh. He has stated that Kin. Biro was admitted in the hospital. 16. Biro and Balvendar Singh. Two x-ray of Km. Biro were conducted in respect of her left hand and skull. 15. Dr. Sharma has also proved x-ray plates and the injury report of Balvendar Singh. He has stated that Kin. Biro was admitted in the hospital. 16. The prosecution examined three eye witnesses of occurrence, i. e. Km. Biro (P. W. 1), Paramjit Singh (P. W 2) and Balvinder Singh (P. W. 3 ). The prosecution further examined the doctors and the police witnesses, i. e. Dr. K. K. Srivastava (P. W. 4), Dr. U. D. Kapoor (P. W. 5), Dr. Habib Ahmad (RW. 6), Dr. Amar Lal (P. W. 7) and Shamsul Hasan (P. W. 8 ). 17. During the trial accused Lakkha Singh died, so the case against him stood abated. The statement under Section 313, Cr. P. C. of accused Gurmit Singh and Jawahar was recorded. No evidence in defence was offered by anyone of them. 18. The three eye witnesses of the occurrence are Km. Biro (P. W. I), Pramjit Singh (P. W. 2) and Balvinder Singh (P. W. 3 ). Out of these three, Km. Biro and Balvinder Singh are injured witnesses. The prosecution further examined two doctors to prove the postmortem reports. Three doctors were produced to prove the injury reports and the x-ray plates. Three Sub-Inspectors were produced to prove the inquest reports, who had prepared the inquest reports etc. The prosecution further examined the other Police Officials to prove the entire investigation conducted by them. 19. P. W. 9 Sub-Inspector Hari Nandan Singh had stated in the cross-examination that on 18. 8. 1986 he got information about this incident at about 8 a. m. and received direction from Circle Officer, Poyawan on wireless (P. W. 9), was cross-examined at length but he specifically stated that at the time of preparing inquest report he had a copy of the first information report and he had mentioned the distance between the police station and the place of occurrence in Kms. On receiving the information on wireless from Circle Officer, Powayan, he immediately proceeded and reached the place of occurrence and prepared the inquest report of deceased Ranjit Singh, Smt. Bhajan Kaur and Surjeet Singh. He has proved the inquest report, challan, photolash of the dead body and the letter sent to the Chief Medical Officer etc. which are Exts. Ka-18, Ka-24, Ka-21, Ka-27, and Ka-28. He has proved the inquest report, challan, photolash of the dead body and the letter sent to the Chief Medical Officer etc. which are Exts. Ka-18, Ka-24, Ka-21, Ka-27, and Ka-28. He also proved the inquest report of Smt. Bhajan Kaur (Ext. Ka-19), Photolash (Ext. Ka-22), and Challan (Ext. Ka-25) as also the letter to the Chief Medical Officer (Ext. Ka-29) and sample of the seal (Ext. Ka-30 ). He further proved the inquest report, photolash and challan of the dead body and the letter to Chief Medical Officer and sample of the seal of deceased Surjeet Singh (Ext. Ka-20, Ka-23, Ka-26, Ka-31 and Ka-32 ). 20. Sub-Inspector Dinesh Kumar Singh (P. W. 10) had been posted in Police Station, Banda at the time of the incident. He prepared the inquest report, challan and photolash etc. in respect of the deceased Nazir Singh, Man Singh and Karam Singh. He proved the inquest reports Ex. Ka-39, Ka-40, Ka-41 and Ka-42 in respect of deceased Nazir Singh. He further proved the inquest report etc. in respect of deceased Man Singh, (Ext. Ka-43, Ka-44, Ka-45, Ka- 46 and Ka-47) and likewise proved the inquest report of the deceased Karam Singh which are Exts. Ka-48, Ka-49, Ka-50 and Ka-51. 21. In his cross-examination he has stated that he got information about this incident at about 7. 30 a. m. in Police Station, Banda on wireless. He immediately rushed to the spot with the Station House Officer Sri Umed Singh, S. I. , K. C. Tyagi and Constables. He also stated that when he was preparing the inquest report he had a copy of the first information report with him but since he used to mention the distance in kms. , he mentioned the distance only in kms. 22. S. I. Sardar Singh, (P. W. 11) prepared the inquest report and other documents in respect of deceased Richapal Singh, Km. Akki, Km. Kanti, Pamma S/o Man Singh, Smt. Sita w/o Man Singh, Km, Pammi d/o Man Singh and Km. Rajvinder Kaur d/o Man Singh. He proved the inquest report and other documents (Exts. Ka-57 to 61) in respect of deceased Richpal Singh. He proved the inquest report and other documents in respect of the deceased Km. Akki (Exts. Ka-62 to 66), in respect of deceased Km. Kanti (Exts. 67 to 71), in respect of deceased Pamma s/o Man Singh (Ext. He proved the inquest report and other documents (Exts. Ka-57 to 61) in respect of deceased Richpal Singh. He proved the inquest report and other documents in respect of the deceased Km. Akki (Exts. Ka-62 to 66), in respect of deceased Km. Kanti (Exts. 67 to 71), in respect of deceased Pamma s/o Man Singh (Ext. Ka-72 to 76), in respect of Smt. Sita w/o Man Singh (Ext. Ka-77 to 81), in respect of Km. Pammi d/o Man Singh (Exts. Ka-82 to 86) and in respect of deceased Km. Rajvinder Kaur d/o Man Singh (Exts. Ka-87 to 91 ). 23. According to him he was on duty in village Goda within the circle of P. S. Sejramau (North) on account of the festival of Iduzzuha. While he was on duty in village Goda he got news that his station House Officer has called him who was in village Rampur Pipariya Hamlet. He atonce proceeded to the place of occurrence accompanied by the constables. In cross-examination he has stated that his Station House Officer gave him the copy of the first information report etc. He has refuted the suggestion of the defence that while preparing the inquest report he had no copy of the first information report. He further denied the suggestion that he had prepared the inquest report at the police station. He has further stated that at the time of preparing the inquest report he knew the fact that in the first information report the distance had been given in miles i. e. 12 miles but he wrote this distance in kilo meters. 24. (P. W. 12) Constable Ram Kishan Singh was posted in police station Sehramau (north) on 18. 8. 1986. He has stated that after preparation of the inquest reports etc. of the deceased persons S. I. Sardar Singh (P. W. 11) had handed over the dead bodies of these persons to him who was accompanied by Constable Biveshwar Singh (P. W. 12) had further stated that the seal of the bodies remained intact and no body was allowed to touch the body. After the postmortem the result of the postmortem and other relevant papers were handed over by him to Biveshwar Singh on 19. 8. 1986 for depositing the same in Police Station Sehramau (north ). He has stated that till the evening of 19. 8. After the postmortem the result of the postmortem and other relevant papers were handed over by him to Biveshwar Singh on 19. 8. 1986 for depositing the same in Police Station Sehramau (north ). He has stated that till the evening of 19. 8. 1986 he remained there till the relevant documents were handed over by the doctors after conducting the postmortem. Likewise, (P. W. 13) Constable Kalloo Singh who had been posted in Police Station Sehramau (north) on 18. 8. 1986 had slated about the handing over of the dead bodies of Ranjit Singh, Smt. Bhajan Kaur, Surjit Singh for conducting the postmortem and handing over all the relevant documents for depositing the same in the police station. 25. On 17. 8. 1986 Constable Shamshul Hasan (P. W. 8) was the Constable Cleark at Police Station Sehramau (north ). He had written the first information report (Ext. Ka-1), on the basis of the oral report lodged by Paramjit Singh (P. W. 2 ). After preparation of the first information report at 6. 30 a. m. he mentioned about the registration of the case in report No. 7 and proved the general diary in respect of registration of case (Ext. Ka. 17 ). In his cross-examination he denied the suggestion that the first information report was written under the influence of village Pradhan Mittar Singh. He frankly stated that the village Pradhan was along with Paramjit Singh (P. W. 2) when he reached the Police Station for lodging the report. The Investigating Officer of this case was (P. W. 18) S. I. Ram Magan Pandey and at the time of occurrence he was posted as station House Officer in Police Station, Sehramau (north ). He has stated that the first information report was lodged in the police station in his presence and he started investigation of the case. After preparing copy of the chik report (Ext. Ka-1) and copy of the report (Ext. Ka. 17) he atonce proceeded to the place of occurrence along with the informant Paramjit Singh (P. W. 2 ). He recorded the statement of the informant Paramjit Singh (P. W. 2) on the spot. Considering the seriousness of the case, the informed his superior Officers and other police stations adjacent to his police station before proceeding to the place of occurrence. He recorded the statement of the informant Paramjit Singh (P. W. 2) on the spot. Considering the seriousness of the case, the informed his superior Officers and other police stations adjacent to his police station before proceeding to the place of occurrence. As soon as he arrived at the place of occurrence, the Circle Officer and Station House Officer Powayan, the Station House Officer of Police Station, Banda, Station House Officer Khatar reached there with the force and with the relevant register if inquest report. P. W. 18, the Investigating Officer prepared the site-plan with the and of the informant Parmjit Singh (P. W 2) and other witnesses. The site-plan Ext. Ka-106 of the place of occurrence was proved by P. W. 18. He also prepared the memo of the lamp which was one of the sources of light at the time of the incident. The memo of the lam (Ext. Ka.-107) was proved by (P. W. 18 ). 26. P. W. 18 further recorded the statement of witnesses including the village Pradhan, Km. Ranjit Kaur and the statement of other witnesses of the memo of lamp. He also recorded the statement of Deputy village Pradhan Jaswant Singh S. I. D. K. Singh has prepared the inquest report. His statement was also recorded by P. W. 18. He also prepared the memo of blood stained cot and the clothes etc. (Exts. Ka-53 to; 56 ). He recorded the statements of other Sub-Inspectors who had prepared the inquest reports and he completed all other formalities in respect of the memo of the dead bodies, the blood stained clothes earth etc, and the other formalities regarding conduction of the postmortem etc. 27. While the Investigating Officer, Ram Magan Pandey (P. W. 18) was in search of the accused persons he got information on 19. 8. 1986 that accused Jawahar was arrested by the police of Police Station Banda and was sent to jail. While he was proceeding to Banda and reached the crossing of Banda along with the police party he found that the police of Banda was carrying accused Jawahar for remand. He recorded the statement of accused Jawahar at Banda crossing. He reached police station banda. He got injury reports of Km. While he was proceeding to Banda and reached the crossing of Banda along with the police party he found that the police of Banda was carrying accused Jawahar for remand. He recorded the statement of accused Jawahar at Banda crossing. He reached police station banda. He got injury reports of Km. Biro (P. W. I) and Balvinder Singh (P. W. 3) but since they had been sent to Shahjahanpur for treatment because of the seriousness of their injuries, they were not available. 28. On 20. 8. 1986 he remained busy in search of accused Gurmit Singh and Lakkha Singh. On 21. 8. 1986 the postmortem reports of all the three deceased persons were received which was entered in the case diary. Between 22. 8. 1986 to 24. 8. 1986 he had gone to Punjab in search of accused Gurmit Singh and Lakkha Singh since their relatives lived in Punjab but they could not be searched out. In the meantime, Sub-Inspector Shyam Singh attached the movable property of accused Gurmit Singh, the necessary entires were made in the case-diary. Thus, he continued to be in search of both the accused persons since 23. 8. 1986 to 4. 9. 1986. On 5. 9. 1986 he recorded the statement of Km. Biro (P. W. 1) in the District Hospital, Shahjahanpur. He also recorded the statement of both the witnesses of the memo (Ext. Ka- 108) relating to the blood stained clothes taken from the custody of Km, Biro. He also recorded the statement of Smt. Baljeet Kaur. The statement of injured Balvinder Singh (P. W. 3) could not be recorded because of serious injuries received by him in his jaw and he was not in a position to speak. 29. In the process of his search for the two accused persons, while he was going in his Jeep on 16. 10. 1986 and while he was passing through Khutar to Gola then at the Khutar road outpost he met S. I. R. K. Shukla who informed him that both the accused persons Gurmit Singh and Lakkha Singh had been arrested by the police of P. S. Gola. He then atonce proceeded to Gola and found them arrested there who had been kept in the police lock-up at P. S. Gola district Lakhimpur Khiri. He then atonce proceeded to Gola and found them arrested there who had been kept in the police lock-up at P. S. Gola district Lakhimpur Khiri. He then recorded the statement of both the accused persons as also the statement of station House Officer Police Station Gola. According to the Investigating Officer (P. W. 18) both the accused Gurmit Singh and Lakkha Singh had confessed this crime and further stated that the weapon, namely, swords were used in the crime and they may pointout the place from where it may be recovered. 30. On 17. 10. 1986 the police of police station Gola produced both the accused persons before the Chief Judicial Magistrate, Lakhimpur Khiri and they were taken on police remand for recovery of swords. The order was passed on 17. 10. 1986 by the Chief Judicial Magistrate, Lakhimpur Khiri (Ext. Ka-109) and the same was proved by P. W. 18. The Chief Judicial Magistrate, Lakhimpur Khiri ordered that confession of both the accused persons may be recorded by Chief Judicial Magistrate, Shahjahanpur. This order was proved by P. W. 18 (Ext. Ka-116 ). On 17. 10. 1986 at about 7. 25 p. m. he returned with both the accused persons and at about 21. 57 p. m. he reached police station Powayan along with the police force. On account of the night it was not possible for the accused persons to lead to the recovery and, therefore, P. W. 18 stayed at Police Stateion Powayan and the necessary entries were made in the diary. On 18. 10. 1986 at about 6. 30 a. m. the Investigating Officer (P. W, 18) proceeded with both the accused persons for recovery of the weapons used in the crime. He proceeded in the Jeep along with the police force at about 7. 30 a. m. with the two public witnesses Hiralal and Ishwar Chand. Both the accused persons confessed that they will handover their swords which they had concealed. At about 8. 05 a. m. both the accused persons searched it out from the deep water accumulated towards northern corner of the Banda village. These swords were sealed and the memo (Ext. Ka-103) was prepared. The statement of the memo witnesses, namely, Hiralal and Ishwar Chand was recorded. At about 8. 05 a. m. both the accused persons searched it out from the deep water accumulated towards northern corner of the Banda village. These swords were sealed and the memo (Ext. Ka-103) was prepared. The statement of the memo witnesses, namely, Hiralal and Ishwar Chand was recorded. The site-plan of the place from where both the swords were recovered on being pointed out by both the accused persons and a site- plan (Ext. Ka-115) was prepared. Since the accused had confessed about the crime in the police station Gola on 16. 10. 1986, the Investigating officer recorded their statement. 31. Another significant fact was disclosed by accused Gurmit Singh, who stated that in order to change the figure they got into the hair cutting shop known as diomand Hair Dressers situated in Kairooganj, Shahjahanpur and got their hair shaved. Accordingly, the Investigating Officer along with the force and the two accused persons reached Shahjahanpur but the said hair cutting shop named as diamond Hair Dressers was found closed. The Investigating Officer (P. W. 18) had some how known the address of the owner of the said shop of the hair cutting saloon and went to the house of the barber but then he was not present at his residence. He then returned to the Police Station Powayan, where both the accused persons were put into lockup and the words were placed into the Malkhana. On 19. 10. 1986 they were again taken to the diamond Hair Dressers in custody and reached at 10. 55 a. m. when the shop was found to be opened and Riyazudin and Mohammad Islam were present there. After identifying Gurmit Singh they stated that he had requested him to clean shave his hair. On 19. 10. 1986 he produced both the accused persons before the remand Magistrate when accused Gurmit Singh and Lakkha Singh were sent to Jail after obtaining 14 days remand. After completing the investigation the charge-sheet was submitted against all the three accused persons (Ext. Ka-119) on 27. 1. 1986. 32. In cross-examination P. W. 18 has stated that at the time of occurrence the said area was not affected by territorist, therefore, the suggestion given by the defence that the occurrence might have been committed by the terrorists was completely ruled out by the Investigating Officer (P. W. 18 ). 33. Ka-119) on 27. 1. 1986. 32. In cross-examination P. W. 18 has stated that at the time of occurrence the said area was not affected by territorist, therefore, the suggestion given by the defence that the occurrence might have been committed by the terrorists was completely ruled out by the Investigating Officer (P. W. 18 ). 33. The learned Counsel appearing for the appellant strenuously urged that the first information report was ante-dated and was lodged after due deliberation. It cannot be said to be a genuine document and cannot be lodged soon after the ghastly incident. It was sent by post and was received by the Chief Judicial Magistrate at 5 p. m. on 23. 8. 1986, the distance being 12 miles. It was contended that the distance between the police station and the place of occurrence was as 20 kms. In the inquest report, whereas, in the first information report the distance was shown as 12 miles. It was further contended that there was no mention of weapon in the inquest report. I find no fore in these contentions and they are rejected. In the present case 13 murders were committed and so many Sub-Inspectors, even from the neighboring police stations, had been called to prepare the inquest reports. It is true that the distance in the inquest report was mentioned in kilometers (20 kms.) where as in the first information report it was mentioned as 12 miles. But it makes no difference and if one calculates then 12 miles will be equal to nearly 20 kms. and that however will not stand against the credibility of the first information report. Further, P. Ws. 9 and 10, S. I. Hari Nandan Singh and Dinesh Kumar Singh have stated in their evidence now a days distance is being written in kilometers. They have further stated that they had with them a copy of the first information report when the inquest reports were prepared by them. There is nothing on record to the contrary and all the official witnesses who prepared the inquest reports have categorically stated that they had with them a copy of the first information report at the time of preparing the inquest reports, therefore, the suggestion that the first information report was prepared after due deliberation has to be rejected. There is nothing on record to the contrary and all the official witnesses who prepared the inquest reports have categorically stated that they had with them a copy of the first information report at the time of preparing the inquest reports, therefore, the suggestion that the first information report was prepared after due deliberation has to be rejected. The inquest reports, in the present case were prepared soon after the occurrence, even by the police Officers of the neighbouring police station since it related to the murder of 13 persons and they had a copy of the first information report with them. Thus, there was no possibility of any deliberations and false implication at the instance of the village Pradhan against whom enmity was suggested. The witnesses have frankly stated that the village Pradhan was present along with the informant at the police station. The frank statement of PW 2 itself shows that the mere presence of the village Pradhan would not create any doubt over the truth of the statement of the first informant, who had himself seen the entire occurrence, unless his ocular evidence is disbelieved on material particulars of the case. He did not conceal the fact about the presence of the village Pradhan. In a case of such a grave nature where 13 persons of the family were murdered in one sequence, one has to imagine the state of mind amongst the villagers or the neighbours. The presence of village pradhan taking him to the police station was not an unnatural event. Further, minor details in the inquest reports for challan of the dead body, such as crime number or non-mention of the weapons in the panchayatnama would not affect the prosecution case. It was not at all necessary to mention crime number and the name of the accused persons in the letter sent to the Chief Medical Officer for postmortem. These are minor omissions. In the present case, S. I. (P. W. 10) had prepared the inquest reports and challan etc. of three deceased persons, S. I. (P. W. 9) had prepared the inquest reports and Challan etc. in respect of three other deceased persons and S. I. (P. W. 11) hard prepared the inquest reports and other documents in respect of seven deceased persons and, in such a situation, these minor omissions would not materially affect the prosecution case. 34. of three deceased persons, S. I. (P. W. 9) had prepared the inquest reports and Challan etc. in respect of three other deceased persons and S. I. (P. W. 11) hard prepared the inquest reports and other documents in respect of seven deceased persons and, in such a situation, these minor omissions would not materially affect the prosecution case. 34. It was further contended that although it has come in the evidence that four or five days before the incident while Smt. Bhajan Kaur was going to serve the food to her family members, then accused Lakkha Singh and Gurmit Singh had abused her and used filthy languages and this aggravated the situation on account of which a panchayat was thought to be performed on the next day when this incident took place, but then this story of panchayat was not mentioned in the first information report. This again was not a very significant fact since it has been established beyond doubt by the evidence of the eye witnesses Km. Biro (P. W. 1), Paramjit Singh (P. W. 2) and Balvender Singh (P. W. 3) that the panchayat was to be performed on the next day of the incident. On this point of panchayat even accused Gurmit Singh and Jawahar are not consistent. While accused Gurmit Singh denied about the question of Panchayat, accused Jawahar in his statement under Section 313, Cr. P. C. accepted that there was a talk of panchayat but it was from the side of the accused persons. I do not find any reason to hold that the non-mentioning of the question of panchayat could, in any way, discredit the veracity of the eye witness (P. W. 2) who is the author of the first information report and who had seen the occurrence from beginning to end. The first information report could not be discredited on this account. The inquest reports which were prepared soon after the occurrence, the challance of the dead bodies and the other incrimination articles prepared on the spot, the copy of the first information report being available with the police officers while conducting the inquest reports have been fully proved by witnesses after witnesses and their evidence has not been shaken or discredited in any manner. The minor discrepancies or minor omissions here and there would not discredit the credibility of these documents which were prepared not by any interested witnesses but by the officials of even the neighbouring police stations and they have fully proved these documents beyond doubt and their evidence has not been shaken on material particulars of the case. 35. In the case of Paresh Katyandas Bhavsarv. Sadiq Yakubbhai, 1993 Cr. LJ 1857, the Supreme Court, while rejecting the submission that the first information report reached the Magistrate after some days, which would go to show that the same must have been brought into existence at a later stage, said : having regard to the nature of occurrence, even if there has been some delay in sending the F. I. R. , that by itself is not a ground to hold that the same must have been brought into existence at later stage and assuming there is a delay what the Court has to see is whether there are indications in the report to show that it was a result of subsequent deliberations. The particulars mentioned in that report do not in any manner give any indication of any exaggeration or a wholesale roping of the accused persons. " 36. A plain reading of the F. I. R. shows that P. W. 2 has particularly stated that part of the occurrence which he has only seen. After having gone through the same, I am satisfied that the report is true one and even accepting that there was some delay in sending the same to the Magistrate, that is not a ground to doubt the genuineness of the report. It is not stated that the injured could not identify the assailants nor it is stated that some unknown persons entered the house. One could understand if the injured had not mentioned the assailants or any of their particulars inspite of being asked specifically. The eye witnesses had seen the ghastly occurrence in the house. They themselves received serious injuries and rushed to the hospital immediately. 37. In the case of State of Punjab v. Hari Singh A. I. R. , 1974 SC1168, it was held : "the ordinary presumption is that a witness speaking under an oath is truthful unless and until he is shown to be untruthful or unreliable in any particular respect. They themselves received serious injuries and rushed to the hospital immediately. 37. In the case of State of Punjab v. Hari Singh A. I. R. , 1974 SC1168, it was held : "the ordinary presumption is that a witness speaking under an oath is truthful unless and until he is shown to be untruthful or unreliable in any particular respect. Witnesses, solemnly deposing on oath in the witness box during a trial upon a grave charge of murder, must be presumed to act with a full sense of responsibility of the consequence of what they state. It may be that what they say is so very unlikely or unnatural or unreasonable that it is safer not to act upon it or even to disbelieve them. The ftigh Court reversing this approach have assumed that witnesses are untruthful unless it is proved that they are telling the truth. It is true that the statement of a witness that he had got up to urinate just before a murder was committed, so that he could witness the murder looks suspicious. But the statement is not, for that reason, necessarily untrue. " 38. After considering the whole mass of evidence the truth has been established by the prosecution beyond any reasonable doubt and it would not be thrown over board on purely self-ethical and conjectural ground. In the circumstances enumerated in this case the decision relied upon by the appellant in the case of Mehraj Singh v. State of UP, 1994 S. C. C. (Cr.) 1390 : 1995 JIC757 (SC) is of no relevance. 39. Coming to the ocular evidence of the three eye witnesses (P. Ws. 1, 2 and 3), it may be stated that they have fully proved the prosecution case and they have stood the test of cross- examination. Km. Biro (P. W. 1) was aged about 13 or 14 years when she was examined on behalf of the prosecution. She is not a literate girl. According to her, the night of occurrence was a moonlit night and a lighted lamp (Dibri) was also present in the room. In the night of the incident she was sleeping with her sister Pammi. In the room her sister Rajvinder Kaur was- also sleeping. Her parents Man Singh and Smt. Sita were also sleeping. Her sister K. Kanti, Km. . Akki and brothers Richpal Singh and Pamma were also sleeping on a cot. In the night of the incident she was sleeping with her sister Pammi. In the room her sister Rajvinder Kaur was- also sleeping. Her parents Man Singh and Smt. Sita were also sleeping. Her sister K. Kanti, Km. . Akki and brothers Richpal Singh and Pamma were also sleeping on a cot. Her uncle E-alvendar Singh was also sleeping on a cot. His wife was not there since she had gone to her parents house. Pamma Singh and his wife Bhajan Kaur, who happens to be uncle and aunt of (P. W. 1) Km. Biro were sleeping with the son on the roof of the kitchen. The grand- father namely, Nazir Singh was sleeping near the tubewell. Wife of INazir Singh was not there because she had gone to her parents house. On arrival of the three accused persons she wokeup and saw that Gurmit Singh and Lakkha Singh had naked swords in their hands and atonce Lakkha Singh attacked Km. Akki, Km. Kanti, Richpal Singh and Pamma, who were sleeping on the cot. He cut down these children. Accused Gurmit Singh attacked on Man Singh who is the father of P. W. 1 and cat him down by his sword. Smt. Sita the mother of P. W. 1 was also cut down by Lakkha Singh by the sword. She was cut down near the door. She has narrated that while she attempted to save her mother accused Lakkha Singh attacked her and she got injuries on her head and fingers. There after accused Lakkha Singh cut down Pammi and Rajvendar Kaur. Accused Gurmit Singh attacked Balvendar Singh who ran towards the chari crop, while Lakkha Singh and Gurmit Singh were busy in cutting down these persons accused Jawahar was throwing bricks on thereof where Karam Singh, Bhajan Kaur and their son Paramijit Singh were sleeping. Karam Singh jumped from the roof and went towards the chari crop but Gurmit Singh chased him and killed him there. Accused Lakkha Singh chased Bhajan Kaur and cut her down in the open field. While these persons were busy in cutting down Bhajan Kaur, this witness P. W. 1 ran away from her room and went in a sugarcane field. In the meantime, Paramjit Singh and Rani also came there. After committing murder of Karam Singh accused Gurmit Singh entered in the room of Karam Singh where Ranjit and Surjit were sleeping. While these persons were busy in cutting down Bhajan Kaur, this witness P. W. 1 ran away from her room and went in a sugarcane field. In the meantime, Paramjit Singh and Rani also came there. After committing murder of Karam Singh accused Gurmit Singh entered in the room of Karam Singh where Ranjit and Surjit were sleeping. This witness heard the bue and cry of Ranjit and Surjit. Thereafter, all these three accused persons went towards the tubewell where the head of the family Nazir Singh was sleeping. Nazir Singh was murdered near his tube-well and then all the three accused persons ran away. On hue and cry raised by this witness Paramjit Singh and Rani and Balvinder Singh neighbours also arrived there. P. W. 1, Km. Biro along with Balvender Singh went to Banda hospital and from there they went to Shahjahanpur for treatment of their injuries. In her cross-examination she has narrated the entire story as stated above. She also stated to be an illiterate girl having no idea of time. She has further stated that as soon as she reached in the field of sugarcane then Rani also arrived there. She has stated that Sub-Inspector had enquired about the incident from her in the hospital. She has stated that when she got the injuries of sword she was crying but not unconscious. She has categorically stated that her father was murdered by accused Gurmit Singh but accused Lakkha Singh was busy in cutting down the children. She has further stated that after committing murders of Bhajan Kaur accused persons committed the murder of Nazir Singh. Her evidence about the manner of occurrence and the sequence of incident narrated by her has not been shaken in the cross-examination. The narration of events are supported even by the medical evidence and other official witnesses who held the inquest reports and proved the first information report and other documents relating to this occurrence and who are all independent witnesses. She has further proved the motive for this crime, although motive does not play an important role when the ocular evidence is believed on all material particulars of the case. 40. Here in the present case, even the motive has been proved by all the eye witnesses. She has further proved the motive for this crime, although motive does not play an important role when the ocular evidence is believed on all material particulars of the case. 40. Here in the present case, even the motive has been proved by all the eye witnesses. It was stated that two or three days before this incident, while Smt. Bhajan Kaur was going to serve the meal to her husband then on the way accused Lakkha Singh, Gurmit Singh and Jawahar abused her with filthy languages. When Smt. Bhajan Kaur reported this matter to Nazir Singh, the head of the family and to Man Singh and Balvender Singh, then Nazir Singh, Man Singh and Balvender Singh complained about this to the three accused persons and they threatened that they will call a panchayat. When the panchayat was to be performed on the next day of the incident, this incident took place in the last night itself. She has deposed that Lakkha Singh used to visit the house of accused Gurmit Singh and used to talk with his wife in her absence. This certainly involved the prestige and honour of the family and, therefore, Nazir Singh had warned Gurmit Singh that Lakkha Singh shall not visit his house hereafter and will not stay in the house of Gurmit Singh. But then accused Gurmit Singh stated that he will not turn out Lakkha Singh and Lakkha Singh will remain continued to visit there. (P. W. 1) has stated that Lakkha Singh was visiting the house of Gurmit Singh just after the marriage of Gurmit Singh. She has stated that later he was living with accused Gurmit Singh in his house. She has further stated that the room of accused Gurmit Singh was clearly visible from the room of Km. Biro (P. W. 1 ). 41. (P. W. 2) Paramjit Singh is the sone of late Karam Singh, who was aged about 13 or 14 years. On his oral version the first information report (Ext. Ka-1) was drawn up. He has fully proved the motive for committing this crime in the said manner as stated by P. W. 1 and has been fully corroborated by P. W. 1. He has given the ocular version of this incident which is again fully corroborated by P. W. 1. On his oral version the first information report (Ext. Ka-1) was drawn up. He has fully proved the motive for committing this crime in the said manner as stated by P. W. 1 and has been fully corroborated by P. W. 1. He has given the ocular version of this incident which is again fully corroborated by P. W. 1. Narrating the incident, he has stated that he was sleeping with his father Karam Singh, mother Bhajan Kaur, and his brother Ranjit Singh and Surjit Singh and his sister Ranu alias Ranjit Kaur were sleeping in the room in which lamp (Dibia) was lighted. His uncle Man Singh and aunt Sita were sleeping near the door of their house. On one cot Rakchpal Singh, Pamma, Kanti, Akki were sleeping, Man Singh and Sita were sleeping on a cot while all other four children were sleeping on another cot. Km. Biro and Pammi were sleeping in the room which is in inner side. At about 11 p. m. (P. W. 2) Paramjit Singh went to urinate and then he returned and was going to sleep. But in the meantime, he saw accused Gurmit Singh, Lakkha Singh and Jawahar were coming from eastern side. Gurmit Singh and Lakkha Singh were armed with naked swords, while accused Jawahar had nothing in his hand. Since accused persons reached there, accused Lakkha Singh as once attacked Rakchapal Singh, Pamma, Kanti and Akki by swaords and cut down these four children. Accused Gurmit Singh had attacked Man Singh, Smt. Sita alias Surjit Kaur. Tb save the life from the accused persons, Man Singh ran away towards north and eastern side in crop of Chari while his wife Sita alias Surjit Kaur ran away towards her room. As soon as Sita alias Surjit Kaur ran away towards he; room accused Lakkha chased her and killed her at the door of the room. Accused Gurmit Singh cut down Man Singh towards north eastern corner of the house. Accused Jawahar was brickbatting towards Karam Singh who was sleeping with her wife on the roof. Accused Jawahar was saying that nobody would be spared. When Balvender Singh tried to save the life of Man Singh, his mother jumped towards western side and ran away towards southern side. Then accused Lakkha Singh chased her and killed her in the filed. Accused Jawahar was brickbatting towards Karam Singh who was sleeping with her wife on the roof. Accused Jawahar was saying that nobody would be spared. When Balvender Singh tried to save the life of Man Singh, his mother jumped towards western side and ran away towards southern side. Then accused Lakkha Singh chased her and killed her in the filed. This witness has further stated that he saw that accused Lakkha then entered in the room of Man Singh where Pammi, Reminder Kaur and Biro were sleeping. He heard hue and cry of Km. Biro but she became silent atonce while Pammi was crying with loud vocie. Rajminder Kaur was also crying in loud voice. P. W. 2 Paramjit Singh jumped from the roof and went in sugarcane field. Km. Biro also reached there. Accused Lakkha Singh and Gurmit Singh entered in the room of P. W. 2 Paramjit Singh P. W. 2 Paramjit Singh heard noise of weeping of Ranjit Singh and Surjit Singh. After that all the three accused persons went towards the tube-well where grandfather of P. W. 2 Paramjit Singh, namely, Nazir Singh was sleeping. P. W. 2 Paramjit Singh has stated that he heard that Lakkha Singh was haying that he has seriously injured Km. Biro although she ran away but she could not survive. P. W. 2 has further stated that he also heard accused Gurmit Singh saying that he had seriously hurt Balvendar Singh although he ran away but he would not survive. He further stated that he saw accused Gurmit Singh and Lakkha both attacking on his grandfather Nazir Singh. After committing murder of Nazir Singh all the three accused persons went towards southern direction. After ten or fifteen minutes, P. W. 2 Paramjit Singh reached to his room and on their hue and cry neighbours came there and he told the whole incident. He saw that in his room dead bodies of Ranjit Singh and Surjit Singh were lying. Four children were murdered in front of Man Singhs room. Near the door Smt. Sitas body was lying. Rajvender Kaur was murdered in the inner room. Man Singhs body was found in eastern northern corner while Karam Singhs body was found in the crop of chari. Biro was injured. Balvendar Singh then came out from the crop of chari. Then these people went towards the tube-well. Near the door Smt. Sitas body was lying. Rajvender Kaur was murdered in the inner room. Man Singhs body was found in eastern northern corner while Karam Singhs body was found in the crop of chari. Biro was injured. Balvendar Singh then came out from the crop of chari. Then these people went towards the tube-well. Bibi who is the mother of (P. W. 2) Paramjit Singh was murdered in the open field. Nazir Singh was murdered near the tube-well (Bamba ). Km. Biro and Balvendar Singh were sent to hospital of Banda on a tractor trolley of Mangal Singh (P. W. 2) Paramjit Singh along with village Pradhan went to police station sehramau (north) at about 5 a. m. This witness has proved F. I. R. (Ext. ka-1 ). After lodging the first information report, he returned to his house with village Pradhan. 42. P. W. 2, Paramjit Singh is not an injured witness. He was aged about 13/14 years and is the scaribe of the first information report. It was contended on behalf of the accused that in all probability this witness was not present on the spot since he was spared and not hurt in any manner. It was further contended that the facts mentioned in the first information report were improved at a later stage and certain vital omissions in the first information report could not be explained by him. The most important aspect was on the point of the two injured witnesses Km. Biro (P. W. 1) and Balvender Singh (P. W. 3) being taken for medical examination. 43. It may be mentioned that Km. Biro (P. W. 1) was examined by Dr. Habib Ahmad at 6. 30 a. m. on 18. 8. 1986 at the Primary Health Centre, Banda as produced by Constable Vijayapal of police station Banda. Balvender Singh (P. W. 3) was examined at 1 p. m. on the same day at the District Hospital, Shahjahanpur by the Medical Officer of the said Hospital, Dr Amar Lal, this mistake in the first information report and omission to mention the fact that Balvender Singh was taken to the District Hospital was put as a grant to disbelieve the testimony of this witness as wholly unreliable. But the relevant fact to be noticed is that Km. Biro (P. W 1) had been examined at 6. But the relevant fact to be noticed is that Km. Biro (P. W 1) had been examined at 6. 30 a. m. at a Primary Health Centre for which the papers along with the constable had been forwarded from police station Banda, thus the Banda police had certainly known about this incident before 6. 30 a. m. in the morning. On the basis of statement of (P. W. 10) Sub-Inspector Dinesh Kumar Singh of Police Station Banda in his cross- examination that the report of this incident was received at Banda police station by means of wireless at 7. 30 a. m. and thereafter he left from the place of occurrence reaching village Rampur Pipariya at 9. 25 a. m. and his further statement that he had no information whether any injured person had come to the police station on the date of the incident, it was contended that the police papers were subsequently manfacutured and even the first information report was lodged subsequently, therefore, P. W. Paramjit Singh could be summoned from some place outside where he might have gone and after-due deliberation the first information report was got scribed by P. W. 2. It was further urged that this witness was on the roof and could hardly see the occurrence taking place down below and even if he could have seen the ghastly crime in which every member of the family was being wiped out he would not venture to jump down the roof to be killed like other members of the family. 44. It is difficult to accept the aforesaid contention. It has not been suggested to this witness that at the relevant time he was not living in the village or that he had gone out. The place of incident is his parents house and of his own grandfather. In the normal course, therefore, he was bound to be residing there unless the contrary was proved. In normal course, the presence of this witnesses at his jhala has to be accepted as asserted by him and there is no basis for the defence suggestion to hold that he might not have been present on the spot. In the normal course, therefore, he was bound to be residing there unless the contrary was proved. In normal course, the presence of this witnesses at his jhala has to be accepted as asserted by him and there is no basis for the defence suggestion to hold that he might not have been present on the spot. Once it is believed that this witness must have been present on the spot, then any other suggestion based on surmises about his presence has to the rejected and the mere fact that this witness was not injured would not render his evidence doubtful. He claimed that he jumped down and reached the sugarcane field from where he had seen accused Gurmit Singh entering the roofs of his portion and killing Surjit Singh and Ranjit Singh as also accused Lakkha Singh chasing his mother Bhajan Kaur and killing her at the back of his jhala. The appellant Gurmit Singh is the own uncle of this witness and his mother, father and other close relations were the victims of this occurrence. He might have been frightened and scared but then it would have been a natural anxiety for this witness to watch the rest of the occurrence as well. In the circumstances, there is nothing unnatural that at a particular point of time, finding an opportunity to escape in thread joining sugarcane field since he went to hide himself along with his own sister Rani and cousin Km. Biro (P. W. 1), he would not have seen the occurrence. Further there appears to be no cogent reason as to why he would be deposing falsely against his own uncle unless he had seen his uncle killing his family members one after the another. In the nature of the evidence that, has been produced by this witness and corroborated by the other two injured witnesses, (P. W. 1) and (P. W. 3), I find no reason to hold that he was not present and had not seen the occurrence. The presence of this witness at the time of occurrence cannot be doubted who has narrated the entire incident where 13 persons of one family were killed in a brutal manner. The presence of this witness at the time of occurrence cannot be doubted who has narrated the entire incident where 13 persons of one family were killed in a brutal manner. His evidence is consistent on each material particulars of the case and is fully corroborated by the medical evidence and the other two eye witnesses/there is nothing in cross-examination to dislodge the credibility of his statement giving the narration of the story in the first information report. There is no reason why the first information report would have been lodged after due deliberations. A few omissions in the first information report could not be a ground to hold that the first information report was not lodged at the time alleged by the prosecution. His testimony on the points of motive, seeing Gurmit Singh and Lakkha Singh armed with swords and attacking his uncle and his children as also his father and mother being chased by the assailants has to be believed. In the far s and circumstances of the present case, it is difficult to believe the suggestions of the defence that the story set up in the first information report was cooked up after deliberations. These eye witnesses belonged to the same family and they had no reason to implicate the accused persons falsely. The entire incident has been narrated from the beginning to end which could not be done at the master mind of some outside agency. The whole family was finished during that night hours and after the occurrence all were found slain. There was no reason why accused Gurmit Singh and Lakkha Singh were missing from the house when the entire family members were being finished by any outsiders. No story was left oui for being cooked up with the deliberations of any outside agency. The injury caused to each one of them were medically proved to have been caused by swords. These witnesses narrated the complete picture and there is nothing in the cross- examination to shake the credibility of these witnesses, on material particulars of the case which has also been fully corroborated by independent witnesses. Thus, the evidence of this witness (P. W. 2) has fully proved the prosecution case against the accused persons. 45. The next eye witness of the occurrence is Balvendar Singh (P. W. 2) who is the real brother of accused Gurmit Singh. Thus, the evidence of this witness (P. W. 2) has fully proved the prosecution case against the accused persons. 45. The next eye witness of the occurrence is Balvendar Singh (P. W. 2) who is the real brother of accused Gurmit Singh. He was injured in this occurrence and for months he was unable to speak. According to him, there was sufficient moon light at about 10 or 11 p. m. He was sleeping in the Sahan. His brother Karam Singh, his wife Bhajan Kaur and (P. W. 2) Paramjit Singh, s/o Karam Singh were sleeping on the roof of the kitchen. Surjit and Ranjit were sleeping inside the house. Rani was also sleeping along with Surjit and Ranjit. His brother Man Singh and his wife were sleeping outside their room. The children of Man Singh, namely Rachapal Singh, Kami, Pamma and Akki were sleeping on a cot. Km. Eire (P. W. 1), Rajvendar Kaur and Pammi were sleeping in the room. This witness P. W. 3 woke up on hearing the sound of arrival of the accused persons and saw that accused Gurmit Singh attacked Man Singh and was cutting him by his sword. He attempted to save his brother Man Singh during the course of which, he was attacked by Gurmit Singh by his and got injuries cutting down his Jaw. Lakkha Singh was attacking the children of Man Singhs brother and was cutting them down by his sword. Receiving (P. W. 3) fled in the Chart field in order to conceal himself. He then saw that accused Gurmit Singh was assaulting Karam Singh with his sword in the that Chari field. P. W. 3 was unable to speak out on account of serious injuries cutting down his jaw. He heard crying of Km. Biro and Paramjit. When the accused persons left the place, he found that his family members and relatives were murdered by the accused persons. The neighbours also arrived when both the injured namely, P. W. 3 Balvendar Singh and P. W. 1 Biro were sent for medical treatment to Banda on a tractor trolly. They got first aid in the hospital and later they were transferred to District Hospital, Shajahahanpur. Both the injured were admitted in the District Hospital, Shajahanpur. 46. It is worth noticing that the examination-in-chief of PW 3 was recorded in about six pages. They got first aid in the hospital and later they were transferred to District Hospital, Shajahahanpur. Both the injured were admitted in the District Hospital, Shajahanpur. 46. It is worth noticing that the examination-in-chief of PW 3 was recorded in about six pages. In cross- examination no question was ever put to this witness about the incident, although so many other questions were put to him about the alleged e. mity. Thus, the statement of this witness P. W. 3 relating to the incident as stated by him remained virtually unchallenged. The suggestion put to him that on account of trees and their thickness and height it was not possible for him to see the incident was categorically denied by him. He is an injured witness and had seen the person causing injuries to him as also to others. Thus, he had seen the occurrence himself and the injuries caused to various others who were murdered by swans of swords, have been fully corroborated by the medical evidence. In normal course it was expected of him that when he had seen the part of the occurrence before he fled and concealed himself in the chari field, he would have the natural curiosity to watch the remaining part of the occurrence as well. In normal course, even though frightened and injured he would have the natural instinct to see the concluding part of the incident. The narrative of the incident given by him is found fully corroborated by the other injured witnesses P. W. 1 and P. W. 2. This strong motive in this case for the accused persons in murdering the whole family has been stated by him which is consistent with the statement of other witnesses P. W. 1 and P. W. 2. Accused Gurmit Singh and P. W. 3 are real brothers. He had no reason to falsely implicate his real brother and, therefore, the suggestion made on behalf of the defence regarding false implication on account of enmity has to be rejected. Again the suggestion put to him on behalf of the defence that the murders were committed by the terrorists and during that attack he was injured in the said incident was firmly denied by this witness. Again the suggestion put to him on behalf of the defence that the murders were committed by the terrorists and during that attack he was injured in the said incident was firmly denied by this witness. That has been further corroborated by the Investigations Officer who has stated that during his tenure of stay in the police station there was no activity of any terrorists in that locality. 47. Considering the ocular testimony of P. Ws. 1, 2 and 3 out of whom P. Ws. 1 and 3 are the injured witnesses, there is no room for any doubt that the occurrence did take place in the manner alleged by these witnesses and the prosecution case relating to the occurrence has been fully proved beyond any reasonable doubt. When the eye witnesses are believed and the manner in which the occurrence has taken place is proved by them, the motive is not of much importance but even then, in the present case, the strong motive for the accused persons to have committed such a brutal murder killing 13 persons of a family has been consistently proved by these witnesses. Minor contradictions in the first information report or in the statement made before the police will not weaken the credibility of the statement of the eye witnesses and the injured witnesses whose parents and relatives including their young children were murdered. Even the recovery of the swords is not of much importance, although the same has been recovered at the instance of the accused persons, since all the injuries on each one of the deceased have been medically found to have been caused only by sword which was in the hands of Gurmit Singh and Lakkha Singh. The postmortem report is consistent about the nature of the injuries caused by means of a sword and the same has fully corroborated the story narrated by these witnesses. The further circumstance that in order to conceal his identify appellant Gurmit Singh entered in the saloon and got his hair clean shaved has also been proved on record. That is also an additional circumstance against the conduct of Gurmit Singh. 48. The further circumstance that in order to conceal his identify appellant Gurmit Singh entered in the saloon and got his hair clean shaved has also been proved on record. That is also an additional circumstance against the conduct of Gurmit Singh. 48. Such has been argued to destroy the evidence of these eye witnesses by putting suggestions to them regarding the source of light but, all the witnesses are consistent on this that it was a moonlight night and in addition to it there was a lighted lamp (Dibri) and thus there was sufficient light for the witnesses to watch and see the whole occurrence. From the evidence of P. W. 18 the Investigation officer and the evidence of P. W. 11, Sub-Inspector Sardar Singh it has been proved that 17. 8. 1986 was the festival day of Iduzzuha and near about Iduzzuha, there remains moonlight. One can take judicial notice of this fact as well. In fact, Idulfitra is celebrated next day after the visibility of moon, while Iduzzuha is celeberated ten days after the visibility of moon. Thus, it became impossible for the defence to challenge that 17. 8. 1986 was not the festival of Iduzzuha. It is also established that on account of this festival the moon was almost full in shape when this incident took place. There is nothing on the record to prove the contrary that the sky was cloudy at the time of the incident and no such suggestions have been put to the witnesses. In the facts and circumstances, it has been established on evidence, that in the night of 17. 8. 1986 at about 11 p. m. there was sufficient light when the incident took place. It has been further established on evidence that all the family members of Nazir Singh were not sleeping together at one place. Nazir Singh was sleeping near his tubewell while his other son and daughter-in-law and grand children were sleeping either in their rooms or in the Sehan of that jhala or on the roof. A Dibia (lamp) had also been lighted in the room and had been placed there. The memo of recovery of this Divia has been proved by P. W. 18 the Investigating Officer. In these circumstances, the defence case that there was no sufficient light for the witnesses to have been the occurrence has to be brushed aside. 49. A Dibia (lamp) had also been lighted in the room and had been placed there. The memo of recovery of this Divia has been proved by P. W. 18 the Investigating Officer. In these circumstances, the defence case that there was no sufficient light for the witnesses to have been the occurrence has to be brushed aside. 49. Attempt on behalf of the defence to create doubt doubt over the prosecution case by putting suggestion to the witnesses that the dacoits might have committed the murder is just based on imagination. If the dacoits would have entered the house with a view to commit dacoity they might have taken away the property of some kind but that is not the case here. Here, in the present case, the accused were interested in brutally murdering the family members one after another and they succeeded. 50. On careful consideration of the materials on record 1 have no hesitation in holding that the prosecution has proved its case beyond all reasonable doubts. Accordingly the appeal preferred by accused Gurmit Singh is dismissed and the Reference No. 6 of 1992 regarding confirmation of death sentence awarded to appellant Gurmit Singh is accepted. Appeal dismissed. JUDGMENt G. Malviya and Surya Prakash, JJ. (decided on 28. 4. 94 ).- As we are divided in our opinion in this case, let the papers of this appeal be placed before Hon. the Chief Justice to nominate another Hon. Judge for his opinion so that ultimately the judgement and order cart follow the opinion of the third Hon. Judge. S. S. Sodhi, C. J.- Lay before U. P. Singh, J. (decided on 2. 8. 94 ). Giridhar Malaviya and Kundan Singh, JJ. (decided on 1-3-96 ).- On a diffrence of opinion between two Judges this appeal was heard by Honble Mr. Justice U. P. Singh, under Sec ion 392, Cr. PC. vide has opinion dated 29. 2. 96 Hon. U. P. Singh has opined as follows. "on careful consideration of the materials on record, I have no hesitation in holding that the prosecution has proved its case beyond all reasonable doubts. Accordingly, the appeal preferred by accused Gurmit Singii is dismissed and the Reference No. 6 of 1992 regarding confirmation of death sentence awarded to appellant Gurmit Singh is accepted. " Accordingly the appeal is dismissed. "on careful consideration of the materials on record, I have no hesitation in holding that the prosecution has proved its case beyond all reasonable doubts. Accordingly, the appeal preferred by accused Gurmit Singii is dismissed and the Reference No. 6 of 1992 regarding confirmation of death sentence awarded to appellant Gurmit Singh is accepted. " Accordingly the appeal is dismissed. The reference made for confirmation of death sentence by the Sessions Judge is accepted. G. Malaviya, J. (decided on 28-4-94 ).- I had the advantage of going through the judgment and order passed by my learned brother Hon. Surya Prasad, J. in the above mentioned appeal but regret my inability to agree with the conclusions drawn by him. 2. Broad features and the facts of the case have been given in the judgment of Hon. Surya Prasad, J. I will be mentioning only such facts which, I think, should be emphasized to advance the point that I am trying to make out in this case. 3. In the incident giving rise to this case 13 persons of a family were done to death on 17. 8. 1986 at 11. 00 p. m. In the tarai region of this State where persons belonging to the Sikh Community in particular started cultivation by cutting a large chunk of jungles. Generally one family gets one place of abode constructed to accommodate the entire family members. This place of their residence is termed as jhala. Nazir Singh the head of a family along with his four sons Karam Singh, Man Singh, Bal-vinder Singh and Gurmit Singh had set up one such Jhala in village Rampur Piparia, police Station Sehramau North. The site plan as also the evidence adduced in this case show that this Jhala had three sets of two rooms each running from west to east. In the two rooms on the western side lived Karam Singh along with his family. In the other eastern portion Nazir Singh along with the family of his sons Man Singh and Balvinder Singh used to reside. Gurmit Singhs room was on the other side of the Jhala. In front of their respective rooms there was open land. 4. On the day of the incident Nazir Singh was sleeping at the tube well which was at some distance from their Jhala towards its south. Gurmit Singhs room was on the other side of the Jhala. In front of their respective rooms there was open land. 4. On the day of the incident Nazir Singh was sleeping at the tube well which was at some distance from their Jhala towards its south. Karam Singh, his wife Bhajan Kaur and son Paramjit (P. W. 2) were sleeping on the roof of their room. Surjit Singh, Ramjit Singh and Ranjit Kaur the three children of Karam Singh were sleeping in the room down below. In the adjoining portion the other son of Nazir Singh, Man Singh, his wife Surjit Kaur and their four children Rishi Pal, Akki, Kanti and Pammi were sleeping in the open courtyard outside their rooms. Their three children Pammi, Biro (P. W. 1) and Rajvinder were sleeping inside the room. The third son of Nazir Singh namely Balvinder was also sleeping in the same courtyard. His wife had, at the relevant time, gone to her fathers place and as such was not living There. This would demonstrate that whereas three persons were sleeping on the roof, three children each of Karam singh and Man Singh were sleeping inside the room and Man Singh, his wife Surjit, Balvinder and Man Singhs four children were sleeping in the courtyard outside their rooms. 5. It has come in the evidence that on the relevant date Gurmit Singh the fourth son of Nazir Singh along with one of his associates Lakkha Singh and servant Jawahar arrived there with a view to eliminate all other members of the family of Nazir Singh. The motive for the crime as disclosed by the prosecution is that Gurmit Singh was married only about a year ago whereafter Lakkha Singh started visiting his wife, talking to her and almost lived to utter dissatisfaction of other members of the family. 6. The murder of all the persons was committed by Gurmit Singh and Lakkha who were armed with swords. Lakkha died during the trial. Jawahar the other accused and servant of Gurmit was assigned the role of coming to the side where Karam Singh, his wife and (P. W. 2) Paramjit Singh were sleeping on the roof and asking them by throwing brick-bats to come down. Jawahar has been acquitted by the learned Session Judge and there is no appeal filed against this judgment and order of acquittal. 7. Jawahar has been acquitted by the learned Session Judge and there is no appeal filed against this judgment and order of acquittal. 7. The ocular testimony of these 13 murders in this case consists of Km. Biro (P. W. 1) aged about 12 years who was inside the room, Paramjit Singh aged about 13-14 years (P. W. 2) who was on the roof and Balvinder Singh aged about 22-23 years (P. W. 3) who was sleeping outside in the courtyard. Out of these three Biro and Balvinder Singh are injured. 8. One of the criticisms levelled against the prosecution case by learned Counsel for the appellant was that although in the First Information Report no clear sequence had been mentioned nor was the same mentioned in the statement under Section. 161 Cr. PC. of the First Informant, the statement in the court gives out the sequence. Learned Counsel therefore, contends that there is a deliberate attempt on the part of the prosecution to improve the version. This, according to the defence, has been done to assert that the eye witnesses could see the incident. The arguments in nutshell, therefore, is that the statement as given in the court should be disbelieved and the only aspect which should be examined is whether the murders of all the all persons alleged to have been committed by two accused persons at the dead of night could really be witnessed by the eye witnesses or not. 9. I have very carefully gone through the evidence of Km. Biro (P. W. I), Paramjit Singh (P. W. 2) and (P. W. 3) Balvinder Singh. Biro daughter of Man Singh deceased was about 12 years of age. She stated before the Sessions Judge that on the day of the incident she was sleeping inside the room along with her sister and in the inner room her sister Rajvinder was also sleeping and just outside her parents along with other brothers and sisters were sleeping. Her uncle Balvinder Singh was also sleeping in the courtyard on a separate cot whose wife had gone to her mothers home. Her uncle and aunt with their son Paramjit Singh were sleeping on the roof of their room and her grandfather Nazir Singh was sleeping at the tube well. It was a bright moon night and the moon light was also coming inside the rooms. Her uncle and aunt with their son Paramjit Singh were sleeping on the roof of their room and her grandfather Nazir Singh was sleeping at the tube well. It was a bright moon night and the moon light was also coming inside the rooms. She got up on hearing the footsteps of some persons. She then saw that outside Gurmit and Lakkha both armed with swords. Lakkha was killing her four brothers and sisters sleeping on the cot and Gurmit was striking at Man Singh with his sword. Her father ran towards the chari field. Her mother had rushed inside the room where Lakkha followed and killed her near the door. When she tried to save her mother even she received the injury from the sword in her head and fingers. Therefafter Lakkha killed Pammi and Rajvinder inside the room. Thereafter Balvinder was assaulted by his uncle Gurmit and Balvinder ran towards the chari field. Gurmit also went towards the chari field. When Lakkha and Gurmit were committing the murders she could hear Jawahar throwing brick bats on the roof and asking the persons sleeping there to come down. This prompted Karam Singh to jump down who fled towards the chari field. Gurmit chased him also and killed him. Lakkha chased Bhajan Kaur who was trying to escape on the back side and killed her in the empty field. When Lakkha had chased Bhajan Kaur she had come out from the room near the sugar- cane field where Paramjit and Rano the sisters of Paramjit had also come. After Gurmit Singh had killed Karam Singh he went inside the room of Karam Singhs portion where he killed Surjit and Ranjit also. She could only hear the shrieks of Surjit and Ranjit. She could clearly see Gurrnit Singh coming from the place she was standing in the sugarcane crop. Lakkha after killing Bbajyn Kaur had also come back towards their rooms from where Lakkha, Jawahar and Gurmit went towards their tube well. They killed her grandfather Nazir on the tube well from where they escaped towards the canal. She had also stated that when she had been struck with sword she had concealed herself below the cot and she came out only after Lakkha had chased Bhajan Kaur so that she could reach the field in which the sugarcane had been sown. They killed her grandfather Nazir on the tube well from where they escaped towards the canal. She had also stated that when she had been struck with sword she had concealed herself below the cot and she came out only after Lakkha had chased Bhajan Kaur so that she could reach the field in which the sugarcane had been sown. When Gurmit, Jawahar and Lakkha had gone away then she went and saw that all other persons were killed. Thereafter she, Param Singh, Rano and Balvinder Singh started crying loudly which attracted many persons. The defence Counsels main criticism of the evidence of this witness is that her statement that she got up hearing the -footsteps of the accused is impossible to be believed. The further contention of learned Counsel for the defence was that at the best it can be said that she being an injured person was present inside the room when she and her other sisters had been attacked but that incident having taken place inside. the room it was impossible for her to have recoginsed her assailant. It was further contended that this witness could not really see either before her being struck with sword or thereafter the actual murder of the persons who were outside her room. It is contended that she has really been tutored to say that she had got up in the night on hearing the footsteps when she witnessed the entire incident outside in the courtyard first and later when Bhajan Kaur as also Surjit and Ranjit were killed. Consequently it is said that her statement that she had witnessed the murder of her two sisters and mother inside her room as also that of her aunt outside and then the arrival of accused Gurmit Singh his going inside the room of Karam Singh where she could hear the shrieks of her other cousins Surjit and Ranjit etc. cannot be believed. 10. It is not, as it cannot be, disputed that Biro was inside the room where she was struck with sword. Even if we were to believe that she did not get up from the sound of the footsteps it is impossible to believe that she would not get up when outside Gurmit and Lakkha started assaulting her father, brothers and sisters. The natural instinct on her part would be to immediately rush out to see what was happening. Even if we were to believe that she did not get up from the sound of the footsteps it is impossible to believe that she would not get up when outside Gurmit and Lakkha started assaulting her father, brothers and sisters. The natural instinct on her part would be to immediately rush out to see what was happening. Gurmit was her own uncle arid Lakkha was residing with him. In the rnoon lit night it was but natural for her to have vecoginsed them. Then after Gurmit had chased her father and Lakkha had killed her brothers and sisters, Lakkha chased her mother inside the same room where she was. If inside the room Lakkha could spot the persons and inflict injuries on them there is no reason why Biro could not also identify Lakkha from there. It may be seen that the accused persons did not spare any one who came in contact with them. The mother and two sisters of Biro had been done to death in the same room. Biro had also received two blows from the sword and she states that thereafter she slipped below the cot. Lakkha would have normally believed that he having given sword blow to Biro she would also be dead, moreso, as she had slipped bellow the cot. Therefore, so far as her witnessing the incident inside the room is concerned, it cannot be doubled that she had seen the person who was killing her mother, her sisters as also the person who had given blows to her. But then the argument of the defence is that she, at the best, could have seen Lakkha alone and since Lakkha is dead her evidence against present appellant Gurmit is totally unacceptable. In this connection the defence has further contended that after being struck with a sword even if she would have been curious to find out as to what had happened, it is impossible to believe that she would muster up courage to come out in the sugar cane field from where she could witness Gurmit and Lakkha killing other persons outside. Although there is no good reason why we should not believe Biro when she says that she had come out and saw Gurmit and Lakkha thereafter, yet even if for the sake of abundant caution her statement to that effect may not be accepted, there still cannot be any doubt that she at the initial stage after hearing some shrieks of her father and mother or brothers and sisters must have seen Gurmit whom she would have surely recoginsed in the bright moon light outside. Therefore, her statement to the extent of her seeing Gurmit coming together with Lakkha and his involvement and participation in the crime is completely made out on which there appears to be no room to doubt her veracity. In my opinion, therefore, this witness Biro should be believed at least to the extent that she had seen Gurmit outside her room when he was chasing his father. 11. It was argued by learned Counsel for the defence that even if Biro had really seen her uncle Gurmit outside at the time of the incident yet her testimony should not be believed now as she had demonstrated herself to be a Her by claiming that she had got up on hearing the footsteps. It is stated that if a witness has indulged in falsehood to this extent then it is very difficult to place reliance on the other part of her testimony. However as stated earlier firstly 1 do not really think that it was altogether impossible for her to have heard the footsteps and secondly even if a witness has, on one particular point, may be on the instructions from some person, it will not be proper to ignore her other evidence for which there may be no room to doubt her testimony. It is now well settled that the dictum falsus in uno falsus in omnibus is not applicable in this country and a witness of fact even if not believed on one point can still be believed on other points in respect of such facts for which there may be no room to doubt his testimony. Therefore, I am inclined to believe (P. W. 1) Biro to the extent mentioned above. 12. P. W. 2 Paramjit Singh is not injured. He is a lad of 13-14 years of age and is the scribe of the First Information Report. Therefore, I am inclined to believe (P. W. 1) Biro to the extent mentioned above. 12. P. W. 2 Paramjit Singh is not injured. He is a lad of 13-14 years of age and is the scribe of the First Information Report. Learned Counsel for the defence contended that this witness in every probability was not present on the spot as he alone was spared and was not even hurt in any manner. It is further alleged that the facts mentioned in the First Information Report were really improved at a later stage and there are certain vital omissions in the First Information Report which could not be explained by him. The most important aspect, according to learned Counsel for the defence, was on the point of the injured Balvinder Singh and Biro being taken for medical examination. 13. In this connection it may be mentioned that whereas Biro was medically examined on 18. 8. 1986 at 6. 30 a. m. by Dr. Habib Ahmad at Primary Health Centre, Banda who was produced before the doctor by constable Vijai Pal of police station Banda, Balvinder was examined at district hospital, Shahjahanpur at 1. 00 p. m. On the same day by Dr. Amar Lal, Medical Officer of the said hospital. Balvinder was not really sent for examination through the police station or with any police constable. Consequently it has been argued that mentioned in the First Information Report of the fact that Balvinder and Biro were taken to Banda for medical examination by the neigbourers shows that this witness did not really know the fact of these persons being taken away as in fact whereas Biro alone was taken to Banda, Balvinder had been sent to the district hospital, Shahjahanpur. This mistake in the First Information Report by this person and omission to mention the fact that Balvinder was taken to the district hospital, according to the defence, makes this witness wholly unreliable. What is really relevant in this connection to note is the fact that Biro had been examined at Primary Health Centre, Banda at 6. 30 a. m. for which the papers along with a constable were forwarded from police station Banda. This demonstrates that Banda police had definitely come to know about this incident before 6. 30 in the morning. What is really relevant in this connection to note is the fact that Biro had been examined at Primary Health Centre, Banda at 6. 30 a. m. for which the papers along with a constable were forwarded from police station Banda. This demonstrates that Banda police had definitely come to know about this incident before 6. 30 in the morning. The defence relied on the statement of (P. W. 10) Sub Inspector Dinesh Kumar Singh of police station Banda who, in his cross- examination, had said that the report of this incident was received by wireless at police station Banda only at 7. 30 a. m. where after he had left for the place of the incident reaching village Rampur Piaria at 9. 25 a. m. It has also come in his statement that he had not information whether any person injured in this incident had come to the police station on the day of the incident. From the above mentioned statements the defence has tried to assert that the police papers were all really manufactured subsequently and since even the First Information Report was lodged subsequently, therefore, (P. W. 2) Paramjit Singh could very well be summoned from such place when he might have had gone, and then after due deliberation the First Information Report was got scribed by (P. W. 2) in which he was shown to be a witness. It has also been urged by the defence that in any case this witness himself claimed to be on the roof, could hardly see what was happening down below and even if he could, per chance, have glimpse of some person committing the dastardly crime in which every member of the family was being systematically wiped out he, at the best, would cling to the surface of the roof to avoid being sighted by assailants and would never venture to jump down the roof to become a target at the hands of the persons who were with a motive to kill all other members of the family. 14. One fact can not be ignored that (P. W. 2) Paramjit was a lad of hardly 14 years. The place of the incident is his parents and grandfathers home. In the normal course this witness is bound to be residing there. 14. One fact can not be ignored that (P. W. 2) Paramjit was a lad of hardly 14 years. The place of the incident is his parents and grandfathers home. In the normal course this witness is bound to be residing there. It has bot been suggested to this witness that at the relevant time he was not living in his village or had gone out. Consequently the presence of this person at his Jhala has to be accepted as stated by him and there does not appear to be any basis in the defence suggestion that this person may not have been present on the spot. Once we find that this witness must have been present on the spot the only other submission of the defence which is worthy of credence is that he may really not have jumped down and he might have remained glued to his own roof top. It is not the prosecution case or defence suggestion that the assailant had gone on the top of the roof of Karam Singh where he and Bhajan Kaur were sleeping. However we find that in the family of Karam Singh it is only this witness Paramjit Singh and his sister Ranjit Kaur alias Rani who had been spared and who did not have any injuries. Ranjit Kaur alias Rani has not been examined to enable us to know how she escapade from being killed by the accused persons. The fact still remains that if Rani whose presence cannot be doubted at the place of the incident was not injured, then the mere fact that Paramjit was not injured would not render his evidence doubtful in this case. Consequently his absence should not make the evidence of this witness altogether unworthy of acceptance. 15. In this connection it would be relevant to quote paragraph 12 from the judgment of the Supreme Court in the case of State of Punjab v. Hari Singh reported in AIR 1974 SC 1168 . Criticising the High Court for taking a patently erroneous approach the Honbel Judges of the Supreme Court observed as follows: "the High Court seems to have assumed that Zora Singh must have invented the story that he had got up to urinate so that he may pose as an eye-witness of the occurrence. Criticising the High Court for taking a patently erroneous approach the Honbel Judges of the Supreme Court observed as follows: "the High Court seems to have assumed that Zora Singh must have invented the story that he had got up to urinate so that he may pose as an eye-witness of the occurrence. The ordinary presumption is that a witness speaking under an oath is truthful unless and until he is shown to be untruthful or unreliable in any particular respect. The High Court, reversing this approach, seems to us to have assumed that witnesses are untruthful unless it is proved that they are telling the truth. Witnesses, solemnly deposing on oath in the witness box during a trial upon a grave charge of murder must be presumed to act with a full sense of responsibility of the consequences of what they state. It may be that what they say is so very unlikely or unnatural or unreasonable that it is safer not to act upon it or even to disbelieve them. The High Court had no doubt tried to show that this was the position with regard to the whole of the testimony of Zora Singh. But, we do not think that it was successful. " 16. P. W. 2 Paramjit claimed that he had jumped down and reached the sugarcane field from where he had seen Gurmit entering the rooms of his portion and killing Surjit and Ranjit as also Lakkha chasing his mother Bhajan Kaur and killing her at the back of his Jhala. Learned Counsel for the defence has pointed out certain contradictions in the statement of this witness and P. W. 1 Km. Biro on the point of their arrival at the said place. However such minor contradictions cannot dimmish the evidentiary value of the statement of Paramjit if his presence on the spot is otherwise believable. The other fact that this witness had made certain omissions in the First Information Report which fact was also not mentioned in his statement under Section 161, Cr. PC. in detail, cannot really make his evidence otherwise unreliable. The appellant in this case was the own uncle of this witness and the victims were also his mother, father and other close relations. Howsoever scared he might have been it would be but natural on his part to have occasionally peeped out to see what was going around. PC. in detail, cannot really make his evidence otherwise unreliable. The appellant in this case was the own uncle of this witness and the victims were also his mother, father and other close relations. Howsoever scared he might have been it would be but natural on his part to have occasionally peeped out to see what was going around. Consequently if he could, at a particular point of time, find an opportunity to escape in the adjoining sugarcane field to hide himself along with own sister Rani and cousin Biro that would not be surprising. In any case even otherwise there is hardly any good reason why this witness would be deposing falsely against his own uncle unless he would have seen his uncle to have committed dastardly crime. I have gone through the evidence of this witness and find myself unable to accept the defence suggestion that this person was not present and had not seen the incident and, therefore, he should be disbelieved. 17. A great stress was laid on the point that in his deposition this witness had stated that their fathers cousin Kashmir Singh and Mangal Singh brother of Pradhan had taken his uncle Balvinder and sister Biro to Banda hospital and it was only after the sunrise that he along with the Pradhan had gone to the police station Sehramau to lodge the report. It was also argued that this witness stated that he had told the fact of Kashmir Singh taking them to the Investigating Officer and if it was not mentioned in his statement he could not assign any reason for that. What has been argued on the strength of the statement of this witness is the fact that Kashmir Singh and Pradhan were inimical to Gurmit Singh who, after due deliberation, got him falsely implicated in this case and since the First Information Report was got lodged by this witness Paramjit Singh at a subsequent stage that resulted in the anamolies mentioned earlier. 18. In this connection reliance has also been placed on the testimony of P. W. 3 Balvinder Singh wherein he stated that Gurmits marriage has been settled by the son of erstwhile Pradhan Banarsi who had also contested the election of Pradhan against Mittar Singh who had lost the election. Balvinder Singh had denied the knowledge of the fact that in this election Gurmit had supported Banarsi. Balvinder Singh had denied the knowledge of the fact that in this election Gurmit had supported Banarsi. However, there is no good ground or basis to urge that the First Information Report in this case was not lodged at the time alleged by the prosecution and hence the prosecution case is doubtful. 19. As discussed earlier the presence of this witness on the spot cannot be doubted and once it is found that this person was present when 13 persons of his family were done to death it would be but natural for him to have watched the murder. Hence his testimony on the points of motive, his seeing Gurmit and Lakkha with swords and attacking his uncle and their children as also his father and mother being chased by assailants has to be believed. A few facts in the First Information Report or the fact that he claimed to have told the Sub-Inspector something which did not find place in his deposition does not affect his statement. Consequently I would find even his evidence good enough on the material facts of this case to prove the case against the present appellant Gurmit. The statement of this witness in his examination-in-chief that he was not sleeping as he had got up to urinate a short while ago may be correct but even if that part of the statement may not be believed by way of abundant caution it should be seen that if his uncle and cousins were attacked in the courtyard down below then that should give this person ample opportunity to peep through and see what was happening down below. However P. W. 2 Paramjit being a natural witness should be believed. 20. Taking up the evidence of Balvinder Singh it may be straight away observed that he too is an injured witness. This means that this witness must have come in close contact with the assailant and consequently the question of his not being able to recognize who were assaulting his does not arise. The criticism leveled against this witness was that on his own admission after seeing that Gurmit appellant was attacking Man Singh with a sword, he went to save him when Gurmit wielded two Swords on him whereafter he went and sat in the chari field of Pyare. The criticism leveled against this witness was that on his own admission after seeing that Gurmit appellant was attacking Man Singh with a sword, he went to save him when Gurmit wielded two Swords on him whereafter he went and sat in the chari field of Pyare. It is asserted that, therefore, he could see from inside the chari field as to what was happening outside. Moreover this witness also claimed that he had thereafter seen Gurmit killing Karam Singh inside the chari crop which, according the defence Counsel was impossible. I fail to see any logic behind this argument. This witness had otherwise no enmity with his own brother Gurmit appellant. The only reason for discard for the family members against Gurmit was that since he did not stop Lakhan Singh meeting his newly married wife and staying with her hence the family members were not happy. This would however not provide any animus to the family member of Gurmit to falsely implicate him in the murder of 13 members of a family. This witness has said that Gurmit had struck him with the sword twice. It was a moon lit night. This witness apparently claims that he concealed himself in the chari field. At a few paces from that place other brother of this witness Man Singh was done to death. The criticism levelled against this witness is that at a few paces away the appellant had killed his other brother Karam Singh inside the chari field and if the murder was committed in the chari field it was impossible for this witness to have really seen the actual assault. It is argued that chari crop is a dense crop and even during the day time it some thing takes place inside the chari field it would be difficult for any person to know what is transpiring there and since present incident was taking place at night the plea that in the moonlight alone this witness could see Gurmit assaulting his brother with sword cannot be possibly believed. It is further argued that if this witness was sitting inside the chari crop himself, even he could not have seen anything from inside the chari crop which was happening outside. It is further argued that if this witness was sitting inside the chari crop himself, even he could not have seen anything from inside the chari crop which was happening outside. However what is relevant to note is that in the cross-examination vide paragraph 3 of his statement this witness stated that he was sitting 2 to 5 paces from the mend in the chari field and this chari was not dense but was scattered. Subsequently in paragraph 9 he had again replied that the chari in which he had hid himself was 4 or 5 feet high which means that the chari had not become very dense by that time. A person sitting inside the chari crop can certainly see what is happening outside even if the incident is taking place in a moon-lit night. Moreover Karam Singh was done to death in the adjoining chari field. It is true that actual assault by sword could not possibly be seen by this witness, but once this witness had seen Karam Singh running ahead in the chari field and further he had seen appellant Gurmit following him with open sword and thereafter this witness must have heard the shrieks at the same place then subsequently on his finding Karam Singhs dead body at the same place from where he had heard the shrieks it would be reasonable to accept his statement that he had seen Gurmit Singh killing Karam Singh in the chari field. I do not find any absurdity in the claim of this witness that he had seen appellant Gurmit Singh assaulting Karam Singh inside the chari field. A few contradictions suggested by the defence Counsel do not take away its evidentiary value. Consequently in my opinion even the statement of Balvinder Singh is available to the prosecution to fasten the guilt against appellant Gurmit Singh. 21. Learned Counsel for the appellant had vehemently argued that the prosecution evidence that only two persons Gurmit Singh and Lakkha Singh could cause the murder of 13 persons is something which cannot be believed. His contention was that Karam Singh 45 years, Man Singh 40 years, Balvinder Singh 22 years and Paramjit 13 years old apart from Bhajan Kaur 38 years, Sita 38 years were themselves of the age group that they could have easily overpowered the two appellants who were just armed with swords and not with any fire arms. His contention was that Karam Singh 45 years, Man Singh 40 years, Balvinder Singh 22 years and Paramjit 13 years old apart from Bhajan Kaur 38 years, Sita 38 years were themselves of the age group that they could have easily overpowered the two appellants who were just armed with swords and not with any fire arms. It has also been argued by learned Counsel for the appellant that judicial notice of the fact that Sikhs always keep a Kripan or sword with them should be taken and consequently no sooner was the first person given a blow his shrieks must have attracted all the members of his family who could be expected to take up their swords and thereafter overpower the assailants. It is further stated that Sikhs are not a coward race and, therefore, the fact that all these major persons had started running away and had not faced the assailants should be indicative of the fact that the assault was not really made by these two persons but that it must have been a case where the dacoits would have raided the house and their strength must have been so great that these persons could not muster up courage to face them. According to learned Counsel for the defence this alone explains running away of persons in various directions and the victims not mustering up courage to offer any resistance. The contention on behalf of the defence is that this was really a case of dacoity in which the dacoits killed all the persons of the family. 22. The argument of any dacoits is hardly available to the defence and can hardly be mentioned lo be rejected. The very texture of the crime does not really indicate commission of any dacoity. In a dacoity the main object is to loot the property. There is no evidence (of looting whatsoever. Secondly the dacoits would not enter every room, search for each and every child and kill them. In this case very tender children Kanti 5 years, Pammi 3 years, Pamma Singh 1 1/2 years, Surjit Singh 4 years, Akki 3 years were all done to death apart from the rest of the children who were all below 11 years. Moreover even Gurmit Singh also resided in the same Jhala. He does not claim to be away from his home on the night. Moreover even Gurmit Singh also resided in the same Jhala. He does not claim to be away from his home on the night. Consequently if dacoits had come, there is no reason for the dacoits to have spared him. Secondly if the dacoits had really committed the murder then there was no reason for the family members to have nominated Gurmit Singh to commit this dastardly crime. As there is no enmity amongst the family members. Consequently the very suggestion that dacoity was committed at the Jhala of Nazir Singh and it was during the course of dacoity that dacoits killed all these persons is a fact which is just to be mentioned to be rejected. 23. This requires the other contention of the appellant to be examined that only two persons could not have committed the murder of 13 persons and cause injuries to two persons in which atleast 4 killed and 1 injured - total 5 were fully grown up persons. However if we analyse the sequence in which the murder has been committed we find that not only the assailants really chalk out the plan how to murder these people but they were also in a position to execute the murder of all these persons. The assailants had choosen the dead of right for commission of this crime. The assailants knew where the dead persons daily used to sleep. Living in the same Jhala they could before starting to commit the murder surveyed the entire situation. They first decided to eliminate Man Singh and his family. It has come in the evidence that Lakkha first killed the kids of Man Singh sleeping outside in the courtyard where Man Singh and-his wife Sita were also sleeping. Gurmit had taken upon himself to kill Man Singh. Apparently the first blow on one of the children must have awakened Man Singh who, as per evidence, tried to run away chased by Gurmit Singh. This also resulted Balvinder sleeping in the same courtyard to get up and finding Man Singh being chased by Gurmit. On his intervention Gurmit gave him blows by his sword. Gurmit was chasing Man Singh he, after giving two blows to Balvinder he chased Man Singh and killed him inside the chari field. Balvinder meanwhile after receiving the injuries at the hands of Gurmit had hid himself in the adjoining chari field. On his intervention Gurmit gave him blows by his sword. Gurmit was chasing Man Singh he, after giving two blows to Balvinder he chased Man Singh and killed him inside the chari field. Balvinder meanwhile after receiving the injuries at the hands of Gurmit had hid himself in the adjoining chari field. After committing the murder of four children of Man Singh, Lakkha, chased his wife Sita inside the room where he killed Sita. When tried to save her he gave her two blows from her swords with the result that being injured (P. W. 1) hid hereself below the cot. Thereafter Lakkha killed the other two sisters of inside the room and came out. Meanwhile Gurmit had also come back. Jawahars brick bats prompted Karam Singh and his wife Bhajan Kaur to come down. Karam Singh was chased and done to death by Gurmit inside the chari crop, whereas Bhajan Kaur was chased and done to death towards the south of their room in the open field by Lakkha Singh. It was thereafter that both these assailants went inside the room of the portion of Karam Singh and committed the murder of his two children there. Ultimately the two assailants went to the tube well where they committed the murder of 70 years old Nazir Singh. 24. Once we examine the sequence of the murders mentioned above, it becomes quite clear that there is hardly any chance for any of these adult members to go and bring their swords to protect themselves. Even though a judicial notice of this fact can be taken that every Sikh keeps a sword or Kripan, but it cannot be believed that they put a sword on a cot when they go to sleep, rather it is generally kept inside the house in the room. Consequently there was hardly any time for any of the victims to go and gather their weapons. The accused persons who had chalked out the plan to commit the said crime could very well see that they could systematically eliminate all the persons in their family without any real resistance being offered in their design to commit this heinous crime. Consequently I am not prepared to accept the defence contention that only two persons could never have caused the murder of 13 persons and injuries to 2 persons. 25. Consequently I am not prepared to accept the defence contention that only two persons could never have caused the murder of 13 persons and injuries to 2 persons. 25. In this connection learned Counsel for the appellant has relied upon the following observation in the judgment of the Supreme Court in the case of Prem Thakur v. State of Punjab, 1983 (20) ACC page 189 (Page 191): "the prosecution case require for its success the incredible assumption that the five persons done to death by a single individual were under such a heavy spell of sleep that none of them woke up when the other or others were attacked, he would have shrieked or shouted and thereby the other would be aroused from their sleep. They were young, able-bodies laborers. It puts quite some train on our credulity to accept that a single person could have finished off his five companions in the fiction like manner alleged by the prosecution. " The facts of the case of Prem Thakur (supra) are clearly distinguishable. Neither the present crime was committed by one man nor was it committed the way the crime was committed in the case of Prem Thakur. As has been discussed by me earlier the sequence in which the murders were committed make it clear that the two appellants could easily commit the crime as has been alleged by the prosecution in this case. 26. A faint argument was also raised that on account of some trees there must have been shadow which would have obstructed moon light. The witnesses were at some distance and consequently it was not possible for them to have recognized assailants. I do not agree. Once there is a moon lit night the recognition of the family members by the other members of the family is hardly difficult, moreover, once the light is put off the eyes in the night get adjusted to see things even in the dim light. As discussed by me earlier, if there was enough light for the accused to even spot the children inside the rooms, the light outside has to be held to be sufficient to enable the witnesses to recognize the assailants. 27. As discussed by me earlier, if there was enough light for the accused to even spot the children inside the rooms, the light outside has to be held to be sufficient to enable the witnesses to recognize the assailants. 27. Learned Counsel for the appellant had also argued that after such a dastardly crime a lad of 14 years of age Paramjit (P. W. 2) could not have been in a frame of mind to get the detailed and essary like First Information Report prepared as is claimed by the prosecution. It was argued that even if any person in the court conducting this case was asked to give the sequence of the incident it would be difficult for any person to prepare such a report. In this connection learned Counsel for the appellant had placed reliance on the judgment of the Supreme Court in the case of Ram Lakhan Singh v. State, reported in 1977 Crl. Appeal Reports 121 where it was observed that after half an hour of the dacoity leaving three persons dead in the house the informant could not have equanimity and patience to detail an essary of information at the police station. The First Information Report in Ram Lakhans case is not quoted in the judgment but it appears that the report ran well over five pages where in a note had been made at the foot of the First Information Report certifying that "the statement of the complainant had been taken down in the chik report word for word. " 28. In the instant case the report is not that long nor can this report be described as an essary like report. It is altogether a different matter when a person after hearing some account may have to repeat the incident but once a person has witnessed a crime himself. It can be a matter of no surprise that once he starts narrating the facts of that case, he would be able to do so as the entire vision comes up before his vision on screen. Consequently the report lodged in this case could be lodged by any person who had seen such an incident. It can be a matter of no surprise that once he starts narrating the facts of that case, he would be able to do so as the entire vision comes up before his vision on screen. Consequently the report lodged in this case could be lodged by any person who had seen such an incident. The mere fact that his father and mother as also large number of family members had been done to death would certainly have affected his mental frame but after sometime once he is asked by the police to give out the incident as it had taken placed he could certainly describe the even and I do not think any doubt can be place on the said report on the ground that such a report could not be lodged by any person whose family members have been done to death. 29. Accordingly in this case I would consider the evidence of P. W. 1 Km. Biro, P. W 2 Paramjit Singh and P. W 3 Balvinder Singh to be worthy of reliance and would find that the prosecution case against the appellants is fully proved. 30. In the result, as per my opinion, I would dismiss the appeal preferred by Gurmit Singh. 31. Since I have not been able to agree with the opinion of my learned brother Hon. Surya Prasad, J. let the appeal be put up before the Chief Justice for nominating another Honble Judge for his opinion as contemplated under Section 392 Cr. P. C. Decided accordingly for reference. Surya Prasad, J. (decided on 28. 4. 96 ).- This is a criminal appeal against the judgement and ordered dated 20. 7. 92 passed by the then learned IV Additional Sessions Judge, Shahjahanpur is Sessions Trial No. 38 of 1987 accuitting the co-accused Jawahar of the charges under Section 302 read with Section 34, I. P. C. and Section 307 read with Section 34, I. P. C. , but convicting the accused Gurmit Singh under Section 302 read with Section 34 I. P. C. and sentencing him to death and further convicting him under Sections 307 read with Section 34, I. P. C. and sentencing him to ten years Rigorous Imprisonment thereunder. 2. The prosecution case briefly stated is that Nazir Singh had four sons named Karam Singh, Man Singh, Balvendar Singh and Gurmit Singh accused. 2. The prosecution case briefly stated is that Nazir Singh had four sons named Karam Singh, Man Singh, Balvendar Singh and Gurmit Singh accused. Karam Singh had been living separately from him brothers and father for about five or six years, while Balvendar Singh and Man Singh were living jointly with their father Nazir Singh. Accused Gurmit Singh was living separately from his brothers and father. Nazir Singh and his all four sons were residing in one Jhala, but were living in separate rooms therein. About a year prior to the incident the accused Gurmit Singh was married. After the marriage of accused Gurmit Singh, co-accused Lakkha Singh who died during the trial, used to visit Gurmit Singhs house even in his absence and used to talk to the wife of accused Gurmit Singh. This was not relished by Nazir Singh. Consequently, Nazir Singh and his other sons rebuked Lakkha Singh and told accused Gurmit Singh that Lakkha Singh was a bad and dirty man. They asked Gurmit Singh not to allow Lakkha Singh to live in the house. Consequently, Gurmit Singh and his companion Lakkha Singh became angry with Nazir Singh and his other sons. It is alleged that Gurmit Singh, Lakkha Singh and Jawahar who happened to be a servant of Gurmit Singh, abused Nazir Singh and the other members of his family. It is further alleged that in the night intervening 17/18. 8. 86 Nazir Singh was sleeping at his Tube-well (Boaring) towards south of his Jhala. The informant Paramjit Singh, his father Karam Singh and mother Bhajan Kaur were sleeping on the roof, whereas his brothers Surjit Singh, Ranjit Singh alias Buddhu Singh and sister Ranjit Kaur alias Rani were sleeping inside the room. It is uncle Man Singh and aunt Surjit Kaur alias Sita and their children Pamma, Rishipal alias Phallu, their daughters Kanti and Akki were sleeping on a cot in front of their house, while Pammi, Rajendra Kaur and Tiro Kaur were sleeping inside their room. Paramjits uncle Balvendar Singh was sleeping outside his room. It is further alleged that at about 11. 00 p. m. in the night intervening 17/18. 8. 86 in village Rampur hamlet of Piparia within the circle of Sehramau (North), District Shahjahanpur, accused Gurmit Singh and his companion Lakkha Singh (since dead) armed with swords along with Jawahar came there. Paramjits uncle Balvendar Singh was sleeping outside his room. It is further alleged that at about 11. 00 p. m. in the night intervening 17/18. 8. 86 in village Rampur hamlet of Piparia within the circle of Sehramau (North), District Shahjahanpur, accused Gurmit Singh and his companion Lakkha Singh (since dead) armed with swords along with Jawahar came there. Gurmit Singh and Lakkha Singh assaulted with their swords and cut down the aforenamed persons, who were sleeping. The co-accused Jawahar was throwing bricks and was asking those sleeping on the roof to come down. He uttered that they would not be spared. Paramjit Singh, his father and mother jumped down from the roof. The accused Gurmit Singh and Lakkha Singh, who were armed with swords, murdered his father and mother respectively. They injured Balvendar Singh and Biru Kaur with their swords. Thereafter the accused persons went towards the Tube-well where Nazir Singh was sleeping. The murdered him also. Paramjit Singh, his sister Rani, niece Biru and uncle Balvendar Singh witnessed the incident in the light of the Moon and a lamp. After the incident, hearing huo and cry, village people come to the scene of occurrence. Thereafter, Paramjit Singh along with other village people inspected the whole Jhala and found that his mother, father, two brothers, uncle Man Singh, wife of Man Singh and six children to Man Singh were murdered by Gurmit Singh and Lakkha Singh with their swords. Balvendar Singh and Km. Biro Kaur, who were injured, were sent by the neighbours to Banda for their medical treatment. Paramjit Singh alongwith Mittar Singh, village Pradhan went to the police station Seramau (North ). Reaching there Paramjit Singh lodged an oral report at the police station. Consequently a case was ultimately registered under Sections 302 and 307 I. P. C. After the registration of the case, Station House Officer and other police Officers rushed to the spot. Some other police officials of other police stations also rushed to the spot as it was a unique case of 13 murders. The then Sub-Inspector Sardar Singh conducted the inquest on the dead bodies of deceased Rishipal Singh, Akki, Kanti, Pamma, Smt. Sita wife of Man Singh, Km. Pammi and Km. Rajendra Kaur and prepared the inousest reports regarding them while observing necessary formalities in connection therewith. The then Sub-Inspector Sardar Singh conducted the inquest on the dead bodies of deceased Rishipal Singh, Akki, Kanti, Pamma, Smt. Sita wife of Man Singh, Km. Pammi and Km. Rajendra Kaur and prepared the inousest reports regarding them while observing necessary formalities in connection therewith. The then Sub-Inspector Dinesh Kumar conducted the inquests on the dead bodies of deceased Nazir Singh, Man Singh and Karam Singh and prepared the inquest reports in regard to them. The then Sub-Inspector Hari Nandan Singh conducted the in quests on the dead bodies of deceased Ranjit Singh, Smt. Bahajan Kaur and Surjit Singh and prepared the inquest reports in regard to them. He also observed other formalities in connection therewith. The dead bodies of these 13 persons were sent to the District Hospital, Shahjahanpur for post-mortem examination. Later on in the course of the investigation into the case the accused Gurmit Singh and Lakkha Singh (since dead) were arrested by the police of police station Gola in District Lakhimpur Khiri. The accused Jawahar was arrested by the police of P. S. Banda. After the completion of the investigation into the case, charge-sheet was submitted by the police of P. S. Shehramau (North) against the accused. 3. Dr. K. K. Srivastava (P. W 4) conducted the post-mortem examination on the dead bodies of the deceased Man Singh, Km Pammi, Kanti, Rishipal Singh, Pamma Ranjit Singh, Smt. Bhajan Kaur, Surjit Singh and Nazir Singh. He found the following ante- mortem injuries on the dead body of deceased Man Singh: (1) Incised would 11 cm. 2 cm. bone deep over right side of neck 3 cm. below right mandible, horizontal margins clean cut. (2) Incised wound 15 cm. 1 cm. muscle deep over right side of neck 1 cm. above injury No. 1, margins clean cut. (3) Incised wound 9 cm. 1. 5 cm. bone deep over right cheek mandibular region, margins clean cut. (4) Incised wound 7 cm. 1. 5 cm. bone deep over left cheek upto nose. (5) Incised wound 4 cm. 1 cm. muscle deep over left cheek 1 cm. below injury No. 4. (6) Incised wound 4 cm. 1 cm. bone deep over left forehead. (7) Incised wound 7 cm. 1 cm. muscle deep over back of neek 3 Cm. below occipital. (8) Incised wound 6 cm. 1 cm. bone deep over back of neck 2 Cm. above injury No. 7. muscle deep over left cheek 1 cm. below injury No. 4. (6) Incised wound 4 cm. 1 cm. bone deep over left forehead. (7) Incised wound 7 cm. 1 cm. muscle deep over back of neek 3 Cm. below occipital. (8) Incised wound 6 cm. 1 cm. bone deep over back of neck 2 Cm. above injury No. 7. (9) Incised wound 8 cm. 2 cm. bone deep over back of neck 3 Cm. below injury No. 7. (10) Incised wound 4 cm. 1 cm. muscle deep over left side front of chest at the nipple. (11) Incised wound 3 cm. 0. 5 cm. bone deep over inner part of left wrist. (12) Incised wound 6 cm. 1. 5 cm. bone deep over back of left fingers of left palm. (13) Incised wound 1 cm. 1 cm. bone cut terminal phalanx missing of left index finger. (14) Incised wound 3 cm. 1 cm. muscle deep over back of right arm (fore, sic) 4 cm. above right wrist. (15) Incised wound 1 cm. 1 cm. bone cut over right middle finger. (16) Incised wound 1 cm. 1 cm. bone over base of right ring finger. (17) Incised wound 2 cm. 1 cm. bone deep over middle front part of right leg. 4. Dr. K. K. Srivastava had found the following ante-mortem injury on the dead body of Km. Pammi: (1) Incised would 12 cm. 2 cm. bone deep on left side next 3 cm. below left mandible. Margins clean cut wound obliquely placed. 5. Dr. Srivastava found the following ante-mortem injuries on the dead body of Km. Kanti: (1) Incised wound left side neck upto front of neck 2 cm. below angle of left mandible. (2) Incised wound 8 cm. 2 cm. bone deep over mandible of right cheek. Margins clean cut. 6. Dr. Srivastava found following ante-mortem injuries on the dead body of Rishipal Singh: (1) Incised wound 4 cm. 1 cm. trachea deep over upper part of neck front. (2) Incised wound 3 cm. 1 cm. bone deep over right side face along right mandible. (3) Incised wound 5 cm. 1 cm. muscle deep over middle of right cheek. (4) Incised wound over right middle finger size 1 cm. 1 cm. bone cut. (5) Incised wound 1 cm. 0. 5 cm. bone deep over posterior aspect of right thumb. (6) Incised wound 4 cm. 1 cm. bone deep over right side face along right mandible. (3) Incised wound 5 cm. 1 cm. muscle deep over middle of right cheek. (4) Incised wound over right middle finger size 1 cm. 1 cm. bone cut. (5) Incised wound 1 cm. 0. 5 cm. bone deep over posterior aspect of right thumb. (6) Incised wound 4 cm. 1 cm. muscle deep over flexor aspect of left fore arm 10 Cm. below elbow. (7) Incised wound 10 cm. 1. 5 cm. bone deep over top of left shoulder. (8) Incised wound 6 cm. 1 cm. cartilage deep over left ear. (9) Incised wound 10 cm. 1 cm. bone deep over right side face. 2 cm. above injury No. 2. 7. Dr. Srivastava found the following ante-mortem injuries on the dead body of Pamma: (1) Incised wound 14 cm. 3 cm. brain deep horizontal over left side of back of head upto 2 Cm. above left ear, bone cut, margins clean cut, tailing anteriorally and horizontal. (2) Incised wound 16 cm. 3 cm. brain deep over left side temporal region, extending upto angle of left eye, horizontal, tailing anteriorally. Margins clean cut. (3) Incised wound 2 cm. 1 cm. bone deep over back of right writs. Margins clean cut, horizontal tailing to the left. 8. Dr. Srivastava found the following ante-mortem injuries on the dead body of Ranjit Singh: (1) Incised wound 22 cm. 3 cm. trachea deep on front and brain deep on back of head right side of neck and upto right side lower part skull. 3 cm. below right ear, margins clean cut. (2) Incised wound 11 cm. 1. 5 cm. bone deep over right side face 3 cm. above angle of mandible, margins clean cut. (3) Incised wound 6 cm. 1 cm. muscle deep over top of right shoulder. (4) Linear incised wound 8 cm. over upper part of chest right side. (5) Liner incised wound 8 cm. over left side neck to upper left part of chest. 9. Dr. Srivastava found the following ante-mortem injuries on the dead body of Bhajan Kaur: (1) Incised wound 14 cm. 2 cm. brain deep over left side of head 1 cm. above left eye brow, oblique extending over left partial region, margins clean cut. (2) Incised wound 20 cm. 3 cm. larynx deep over chin and neck front part, margins clean cut. Srivastava found the following ante-mortem injuries on the dead body of Bhajan Kaur: (1) Incised wound 14 cm. 2 cm. brain deep over left side of head 1 cm. above left eye brow, oblique extending over left partial region, margins clean cut. (2) Incised wound 20 cm. 3 cm. larynx deep over chin and neck front part, margins clean cut. (3) Incised wound back of left hand, size 9 cm. 1. 5 cm. bone cut. Margins clean cut. (4) Incised wound over back of neck size 15 cm. 3 cm. vertebrae deep at cervical two level, margins clean cut. (5) Abrasion 4 cm. 3 cm. over top of right shoulder. 10. Dr. Srivastava found the following ante-mortem injuries on the dead body of Surjit Singh: (1) Incised wound over right side of neck size 11 cm. 3 cm. bone deep 3 cm. below right ear, carotid artiries and veins branches jugular veins and nerves cut, muscle cut, wound is horizontal and tailing backwards, Margins clean cut. (2) Incised wound 7 cm. 1 cm. bone deep over back lower part right arm 1 Cm. above x elbow, horizontal tailing backwards, margins clean cut. 11. Dr. Srivastava found the following ante-mortem injuries on the dead body of Nazir Singh: (1) Incised wound over neck 37 cm. all neck structure. Only 5 cm. of skin left over right side. (2) Incised wound over top of left shoulder size 3 cm. 1 cm. bone deep. 12. According to Dr. K. K. Srivastava, all these nine persons died due to above injuries and due to shock and hemorrhage. He has stated that the injuries on these nine persons might have been caused by a sharp edged weapon such as sword and were sufficient in the ordinary course to cause death. He was of the view that these injuries might have been caused on 17. 8. 86 at 11 p. m. 13. Dr. U. D. Kapoor P. W. 5 on 19. 8. 86 conducted the post-mortem examination on the dead body of Akki daughter of Man Singh, Smt. Sita wife of Man Singh, Rajendra Kaur and Karam Singh. He found the following ante-mortem injuries on the dead body of Km. Akki: (1) Incised wound 15 cm. 6. 5 cm. in front of his neck just below chin cutting in deepest situation. Larynx, trachea and bit veins are cut. (2) Incised wound 6 cm. 1 cm. He found the following ante-mortem injuries on the dead body of Km. Akki: (1) Incised wound 15 cm. 6. 5 cm. in front of his neck just below chin cutting in deepest situation. Larynx, trachea and bit veins are cut. (2) Incised wound 6 cm. 1 cm. muscle deep over his top of left shoulder joint. (3) Incised wound 3 cm. 1 cm. muscle deep on his lateral side of left upper arm upper part. 14. Dr. Kapoor found the following ante-mortem injuries on the dead body of Smt. Sita: (1) Incised wound 16 cm. 3 cm. brain matter deep on her back of head extended just middle of head to left ear. (2) Incised wound 12 cm. 3 cm. brain matter deep in the middle from front of face at root of nose. (3) Incised wound 8 cm. 3 cm. bone deep on the right side cheek 3 cm. below to injury No. 2. (4) Incised wound 6 cm. 2 cm. bone deep on her lower side of the right fore-arm middle point. 15. Dr. Kapoor found the following ante-mortem injuries on the dead body of Km. Rajmindar Kaur: (1) Incised wound 10 cm. 2 cm. bone deep in front of neck cutting his lary and trobe nd big vessels. (2) Incised wound 8 cm. 2 cm. bone deep in front of face at the level of mouth cutting to underlying maxlla. (3) Incised wound 3 cm. 1. 5 cm. muscle deep in right inner (sic) of right upper arm middle joint. (4) Incised wound 3 cm. 1 cm. on his back of left elbow joint. 16. Dr. Kapoor found the following ante-mortem injuries on the dead body of Karam Singh: (1) Incised wound 6 cm. 2. 5 cm. muscle deep on left side of back just below the left ear. Corotid artery and cutting judgular veins. (2) Incised wound 12 cm. 4 cm. bone deep on his left side neck 6 cm. below to injury No. 1 cutting left internal carotid artery and cutting jugular veins. (3) Incised wound 3 cm. 1 cm. on his inner aspect of forearm 5 cm. above left wrist joint. (4) Incised wound 4 cm. 1 cm. muscle deep at her root of right palm. (5) Incised wound 4 cm. 1 cm. x bone deep on his middewfion of Iwdr had laim, aspet. 17. According to Dr. (3) Incised wound 3 cm. 1 cm. on his inner aspect of forearm 5 cm. above left wrist joint. (4) Incised wound 4 cm. 1 cm. muscle deep at her root of right palm. (5) Incised wound 4 cm. 1 cm. x bone deep on his middewfion of Iwdr had laim, aspet. 17. According to Dr. U. D. Kapoor all the injuries caused to these persons might have been caused by sword. He has further stated that the death of these persons would have take place at about 11 p. m. on l7. 8. 86. According to Dr. U. D. Kapoor the injuries on the body of deceased persons were sufficient in the ordinary course to cause death. 18. Dr. Habib Ahmad (P. W. 6) examined Km. Biro and found the following injuries on her body: (1) Incised oblique wound on the both side of head 10. 5 cm. x 1 cm. x bone deep 6 cm. above the root of nose. (2) Incised wound on the dorsal aspect of left hand extending towards the finger 7. 5 cm. 1. 5 cm. bone deep 6 cm. below the wrist joint, half of the little ginger is completely cut off, ring finger it also cut and hanging with sking flap. According to (P. W. 6) Dr. Habib Ahmad these injuries might have been caused by a sharp edged weapon and were about 1 2/2 days old at the time of medical examination of Km. Biro. Dr. Habib Ahmad further advised for X-ray. He was proved the injury report of Km. Viro which is Ex. Ka- 15. He has further stated that injury No. 1 was on vital part of the body and was dangerous for life while injury No. 2 was caused on little finger. 19. P. W. 7 Dr. Amar Lal examined the injuries on the body of Balvendar Singh and found the following injuries on his body: (1) Incised wound 11 cm. 1. 25 cm. depth not probed on the right side face heard (lower) of mandible, bleeding present. (2) Incised wound on right side face 10 cm. 1 cm. depth not probed above injury No. 1. bleeding present. 20. Dr. Amar Lal (P. W. 7) has stated that injuries caused to Balvendar Singh were not of such a nature as to cause death atonce. However, in case of excessive bleeding, death could be caused. (2) Incised wound on right side face 10 cm. 1 cm. depth not probed above injury No. 1. bleeding present. 20. Dr. Amar Lal (P. W. 7) has stated that injuries caused to Balvendar Singh were not of such a nature as to cause death atonce. However, in case of excessive bleeding, death could be caused. He has proved the injury report of Balvendar Singh which is Ex. Ka-16. He advised him for X-ray. 21. Dr. B. P. Sharma (P. W. 17) has proved the X-ray reports and X-ray plate of Km. Biro and Balvendar Singh. Two X-rays of Km. Biro were done in respect of her left hand and her skull. 22. Dr. B. P. Sharma has also proved X-ray plate and report of jaw of Balvendar Singh. He has stated that Km. Biro was admitted in the hospital. 23. The prosecution has examined Km. Biro (P. W. 1), Paramjit Singh (P. W. 2), Balvendar Singh (P. W. 3), Dr. R. K. Srivastava (P. W. 4), Dr. U. D. Kapoor P. W. 5, Dr. Habib Ahmad P. W. 6, Dr. Amar Lal P. W. 7, Shamshul Hasan P. W. 8, Hari Nandan Singh P. W. 9, Dinesh Kumar P. W. 10, Sardar Singh P. W. 11, Ram Kishan Singh P. W. 12, Kallu Singh P. W. 13, R. P. Singh P. W. 14, Sheo Mangal Singh P. W. 15, Hira Lal P. W. 16, Dr. B. P. Sharma P. W. 17, Ram Mangal Pandy P. W. 18 and relied upon certain documents in support of its case. 24. The accused pleaded not guilty. He has stated that all the allegations levelled against him are wholly wrong and incorrect. He has displayed his ignorance about many of the facts relating to the case. He has not examined any one in support of his contentions. 25. Having heard the learned Counsel for the parties and having considered the evidence on record, the IV Addl. Sessions Judge, Shahjahanpur convicted and sentenced the appellant-accused through his impugned judgment and order as mention earlier. Aggrieved, he preferred this appeal against the same. 26. We have heard the learned Counsel for the parties and have perused the evidence on record. 27. Nazir Singh had four sons named Karam Singh, Man Singh, Balvendar Singh and Gurmit Singh accused. Karam Singhs wife was Bhajan Kaur. Man Singhs wife was Surjit Kaur alias Sita. Aggrieved, he preferred this appeal against the same. 26. We have heard the learned Counsel for the parties and have perused the evidence on record. 27. Nazir Singh had four sons named Karam Singh, Man Singh, Balvendar Singh and Gurmit Singh accused. Karam Singhs wife was Bhajan Kaur. Man Singhs wife was Surjit Kaur alias Sita. Karam Singh had three sons named Surjit Singh, Ranjit Singh alias Buddhu and Paramjit Singh and a daughter named Ranjit Kaur alias Rani. Man Singh had two sons named Pamma and Rishipal alias Phalloo and daughters named Pammi, Rajmendra Kaur, Biro Kaur, Kanti and Akki. Nazir Singh, Karam Singh, Bhajan Kaur, Surjit Singh, Ranjit Singh alias Buddhu, Man Singh, Smt. Surjit Kaur alias Sita, Pamma, Rishipal, Kanti, Akki, Pammi and Rajmendra Kaur were murdered. Balvendar Singh and Biro Kaur were injured. Paramjit Singh is the informant. Gurmit Singh is the accused- appellant. 28. Nazir Singh was allegedly sleeping at his tube-well. Karam Singh and his wife Bhajan Kaur alongwith Paramjit Singh were allegedly sleeping on the roof of their house. Surjit Singh, Ranjit Singh alias Buddhu and Ranjit Kaur alias Rani were allegedly sleeping on a cot inside the room. Man Singh, Smt. Surjit Kaur alias Sita, Pamma, Rishipal alias Phalloo, Kanti and Akki were sleeping on a cot outside the room, whereas Pammi Rajmendra Kaur and Biro were sleeping on a cot inside the room. Balvendra Singh was allegedly sleeping on a cot outside his room. It is further alleged that it was at about 10-11 a. m. when the accused Gurmit Singh, Lakhha Singh (since dead) and one Jawahar, who was acquitted, came and committed the murders of the above named thirteen persons including minor children. 29. The informant Paramjit Singh P. W. 2 asserts to have witnesses the entire incident since its very inception. Similarly Km. Biro P. W. 1 and Balvendra Singh, P. W. 3, who are injured, also assert to have seen the incident. There is no other eye witness in the instant case. The above named three eye witnesses are closely related to the deceased persons as well as the accused. Therefore, we have to scrutinise their statements very carefully. 30. Paramjit "singh P. W. 2 has stated that he had laid down after passing water 10-15 minutes to 11. 00 a. m. , but could not have composed himself to sleep. The above named three eye witnesses are closely related to the deceased persons as well as the accused. Therefore, we have to scrutinise their statements very carefully. 30. Paramjit "singh P. W. 2 has stated that he had laid down after passing water 10-15 minutes to 11. 00 a. m. , but could not have composed himself to sleep. It was then that the accused Gurmit Singh, Lakkha Singh and Jawahar came from the east and then turned to the north. He had the feel of their feet and therefore, peepingly saw them. He has evasively and half hearted stated that he might have got the above facts/things written in the First Information Report and told the same to the Investigating Officer in his statement under Section 161, Cr. PC. But there is nothing as such in the First Information Report or in his statement under Section 161 Cr. PC. 31. Paramjit Singh P. W. 2 has further stated that the accused Lakkha Singh started assaulting Rishipal, Pamma, Kanti and Akki with sword, whereas Gurmit Singh started assaulting Man Singh and Surjit Kaur with a sword. Man Singh, however, ran away towards the Chari field, whereas Surjit Kaur ran away towards the room. But the accused Lakkha Singh chased her and killed her at the door and Gurmit Singh killed Man Singh at the north-eastern corned of chari field Balvendra Singh tried to save Man Singh, but Gurmit Singh assaulted him (Balvendra Singh ). Karam Singh jumped down from the roof and ran away towards the Chari field. Gurmit Singh chased him and killed him in the Chari field. Bhajan Kaur jumped down from the roof and ran away towards south. But Lakkha Singh chased her and killed her in a vacant field. From all this, it is evidently clear that Paramjit Singh P. W 2 has tried to give a detailed description of the murders in secuance. But there is no sequance as such in the First Information Report or in his statement under Section 161, Cr. PC. On the other hand, it has been clearly mentioned in the First Information Report that the accused Gurmit Singh and Lakkha Singh started assaulting with swords all the members of his (Paramjit Singhs) family at the places where they were sleeping. This means and indicates that Gurmit Singh and Lakkha Singh started assaulting all the thirteen deceased persons simultaneously. PC. On the other hand, it has been clearly mentioned in the First Information Report that the accused Gurmit Singh and Lakkha Singh started assaulting with swords all the members of his (Paramjit Singhs) family at the places where they were sleeping. This means and indicates that Gurmit Singh and Lakkha Singh started assaulting all the thirteen deceased persons simultaneously. But it was well nigh impossible for them to have assaulted all the thirteen deceased persons simultaneously particularly because all the thirteen deceased persons were sleeping not at one and the same place, but at five different places. In view of all this, the statement of Paramjit Singh (P. W. 2) to the above effect does not find corroboration from what has been mentioned in the First Information Report. 32. Paramjit Singh (P. W. 2) has asserted that the accused Lakkha Singh had uttered that he had assaulted Biro, who ran away, but she could not survive. There is, however, nothing as such in the First Information Report or in his statement under Section 161, Cr. PC. 33. There is not even a word in the statement of Paramjit Singh indicating that he, Karam Singh, Bhajan Kaur, Man Singh, Surjit Kaur, Balvendar Singh or Nazar Singh raised alarm at any point of time. But Km. Biro P. W. 1 has categorically stated that her father had cried at the top of his voice before she was assaulted with sword. According to her, none of the people from the vicinity came there. She has further stated that Karam Singh and others had waken up on the cry of her father, but they could not run away. Not only this, but Balvendra Singh, Surjit Kaur and Paramjit Singh had also waken up on the hue and cry of her father. It may be mentioned that there accused Gurmit Singh and Lakkha were allegedly armed with swords. They were not unknown. There is, however, no evidence to show that Karam Singh, Man Singh, Balvendra Singh, Bhajan Kaur or Surjit Kaur made any effort in any manner what so ever to offer resistance against the accused- appellant and Lakkha Singh (since dead ). This is something very surprising particularly in view of the facts and circumstances of the case. The contention of the learned Counsel for the accused appellant to this effect does not appear to be devoid of substance. 34. This is something very surprising particularly in view of the facts and circumstances of the case. The contention of the learned Counsel for the accused appellant to this effect does not appear to be devoid of substance. 34. Having jumped down from the roof, Paramjit Singh P. W. 2 ran away and remained standing at the corner of the sugarcane-crop field. Thereafter Km. Biro P. W. 1 and Rani reached there. Km Biro P. W. 1 has stated that she went to the sugarcane crop running court of the room. Paramjit Singh and Rani also reached there. There is thus no consistency in their statements on the point of time of their reaching the corner of the sugarcane crop field. The statement of Paramjit Singh shows that he reached there first and Km. Biro and Rani afterwards. But the statement of Km. Biro indicates otherwise than this. In other words, he reached there first and Paramjit Singh afterwards. There is no evidence on record to show that Paramjit Singh or Km. Biro raised alarm while running towards the sugarcance-crop field. Nor is there any evidence to show that either of them raised alarm on his/her reaching the corner of the said field. And yet, they reached the corner of the said field and remained together there. 35. There had been no talk between Paramjit Singh and Km. Biro about the incident or about the writing of the report. Paramjit Singh P. W. 2 had not told anything to her about the report. There is no indication otherwise than this in the First Information Report as well. And yet, the First Information Report FJC. Ka- 1 shows that Km. Biro, Km. Rani and Balvendra Singh had fully seen the incident in the Moon light as well as in the light of the lamp. If there had been talks amongst Paramjit Singh P. W. 2, Balvendra Singh P. W. 3 and Km. Biro about the incident prior to the lodging of the First Information Report at the police station and if Km. Biro and Balvendra Singh had specifically told him that they had fully seen the incident in the said lights, the same could have been then only got written in the First Information Report. 36. Biro about the incident prior to the lodging of the First Information Report at the police station and if Km. Biro and Balvendra Singh had specifically told him that they had fully seen the incident in the said lights, the same could have been then only got written in the First Information Report. 36. Pammi, Kanti, Rishipal, Pamma, Akki and Rajmender Kaur received one incised wound, two incised wounds, nine incised wounds, three incised wounds, three incised wounds and four incised wounds respectively. They must have cried, shrieked and shouted in the process of being killed. Their parents, Man Singh and Surjit Kaur must have certainly heard their cries, shrieks and shouts. But they could not make any effort to save their children. This is so because there is no evidence on record to that effect. On the other hand, they tried to run away in order to save themselves and in that process they were killed. It may be mentioned that the parents prefer to sacrifice their lives to save the lives of their children. So is the case with Karam Singh and his wife Bhajan Kaur. All this indicates something in expressible inexplicable and myterious. 37. All the deceased persons received seventy-two incised wounds in all. The must have also cried, shrieked and shouted in the process of being killed. Some of the village people initially and many of them subsequently must have heard their cries, shrieks and shouts. None of them rushed to their rescue in the course of the incident. All this also indicates something shrouded in mystery. 38. Paramjit Singh P. W. 2 has stated that his father Karam Bir Singh along with his son Ranjit Singh was doing Nirai in his field and the accused Gurmit along with Lakkha and Jawahar was doing Nirai in his field. His mother Bhajan Kaur was going with water to Karamvir Singh. It was then that Gurmit Singh had abused his mother. Consequently, his grandfather Nazir Singh had rebuked Gurmit Singh, Lakkha and Jawahar. Not only this but his grandfather had also given two slaps on Lakkha, Man Singh and Balvender Singh had told that they would inform the police also, whereupon Nazir Singh asked them to convene a Panchayat first. Consequently his uncle went to Pradhan and Uppradhan Jas Singh, Banarsi Das, Hazara Singh and Daleep and requested them to assemble in the Panchayat. Consequently his uncle went to Pradhan and Uppradhan Jas Singh, Banarsi Das, Hazara Singh and Daleep and requested them to assemble in the Panchayat. That Panchayat was to be held next day from the incident. He (Paramjit Singh) had also accompanied his uncle. In his statement under Section 161, Cr. PC. he had told the Investigating Officer that his mother was going with food to his father. When confronted, he could not assign any reason why the Investigating Officer had written so in his statement under Section 161, Cr. PC. He has asserted that he had got in the First Information Report written that his mother was going with water to his father. But there is nothing as such in it. There is no mention in the First Information Report that he had accompanied his uncle Man Singh in connection with the convening of the Panchayat. He had not told the same to the Investigating Officer also. He could not assign any reason for not doing so. There is nothing in the First Information Report about the fact that his grand father had given two slaps on Lakkha Singh. Nor is there anything as such in his statement under Section 161, Cr. PC. The First Information Report shows that his grandfather rebuked Lakkha Singh. But his statement is contrary to this. He has stated that there had been no exchange of abusive words between Gurmit Singh on the one side and other members of his family on the other. Gurmit Singh being rebuked by his grandfather. But there is specific mention of this fact in the First Information Report. He has categorically denied having got written any such exchange of abusive words between them. He has stated that this relation Kashmir Singh and Mangal Singh, brother of the village Pradhan had taken Km. Biro and Balvender Singh in a Tractor-trolly to the Banda Hospital. He has completely denied that the neighbours had taken them to the hospital. He could not, however, assign any reason why this has been written in the First Information Report. 39. Km. Biro (P. W. 1) asserts to have been working up inside the room at the time of the incident. There is no evidence on record to show why she was working up late in the night. He could not, however, assign any reason why this has been written in the First Information Report. 39. Km. Biro (P. W. 1) asserts to have been working up inside the room at the time of the incident. There is no evidence on record to show why she was working up late in the night. She has further stated that she woke up on the feel of the feet of the accused Gurmit Singh, Lakkha Singh and Jawahar. If she had been woking up as a result of the feel of the feet does not arise. Her statement is therefore self- contradictory. 40. Km. Biro (P. W. 1) has no idea of time and directions. She had not told the Investigating Officer north, south, east and west. But the Investigating Officer has written all these directions in her statement under Section 161, Cr. P. C. in connection with certain facts disclosed by her. She could not be able to assign any reason why the Investigating Officer had written all this in her statement under Section 161 Cr. P. C. She has denied having been taken to the police station Barida. Not only this, but she has also denied having told the I. O. that she was sent to the hospital from the police station Barida. She could not tell how the Investigating Officer has written the same in her statement under Section 161, Cr. P. C. She has further stated that she had sat down when the accused persons were assaulting others. But none of the accused person asked the other to kill her. Had there been any tinge of truth in her statement to this effect. She could not have certainly been spared especially when all others were being assaulted by the assailants. She has denied having told the Investigating Officer that Paramjit Singh had gone to the police station along with the Pradhan in the night itself. But her statement contains this fact. She could not have been able to assign any reason for the same. 41. The statement of Balvender Singh (P. W. 3) is self contradictory. Not only this but he has made material improvements over his statement under Section 161, Cr. P. C. 42. In view of what has been discussed and observed above, no implicit reliance can be placed upon the testimony of any of the above named three alleged eye witnesses. 43. The statement of Balvender Singh (P. W. 3) is self contradictory. Not only this but he has made material improvements over his statement under Section 161, Cr. P. C. 42. In view of what has been discussed and observed above, no implicit reliance can be placed upon the testimony of any of the above named three alleged eye witnesses. 43. The sugarcane crop field is situated at a considerably long distance from the house/room of Km. Biro. Km. Biro (P. W. 1), Rani and Paramjit Singh (P. W. 2) were allegedly standing quite close to one another in the sugarcance crop filed. The house of Gurmit Singh was not visible from the said field. Bhajan Kaur was killed at a distance of 20 feet from the house of the accused Gurmit Singh. They were seeing Nazir Singh from the place where they are standing. But they did not see Nazir Singh being killed. 44. There were a large number of trees in between the Jhalas/houses of Nazir Singh and Km. Biro (P. W. 1 ). There were many trees at the tube-well of Nazir Singh. Balvender Singh had allegedly hidden himself in the Chari field at a distance of 60-70 feet from the place where they were standing in the sugarcane crop field. There was a Neem tree in front of the Chari field. Similarly there were Neem, Jamun and Mango trees behind the Jhala. 45. It is on the basis of the above facts, that the learned Counsel for the accused-appellant has argued that there must have been shade and shadow of the trees obstructing the Moon light and that the witnesses were at a great distance from the Jhala or from their respective houses at the time of the incident and therefore, it was not possible for them to have identified the accused-appellant from that distance even in the Moon Light. For this he has placed reliance upon the State of Uttar Pradesh, Appellant v. Ashok Kumar and another, Respondents, AIR 1979 Supreme Court 874, Wherein it has been, inter-alia, observed as under: "by moonlight one can recognise, when the moon is at the quarter, persons at a distance of from 21 feet, in bright moonlight at from 23 to 33 feet; and at the very brightest period of the full moon, at a distance of from 33 to 36 feet. In tropical countries the distances for moonlight may be increased. " 46. The opinion of Gross referred to above fully fortifies our conclusions that it was not possible for the witnesses to have identified the respondents even in the moonlight from a distance of about 150 yards. In these circumstances, therefore, the High Court was fully justified in holding that it was not possible for the eye witnesses to identify the respondents from such a long distance on the night of the occurrence. The prosecution suggested that the witnesses had lighted their torches and it was in the light of torches coupled with moonlight that identification was possible. In the first place, we find it difficult to believe that after Ashok Kumar had given a call and fired the witnesses would dare to flash the torch light and expose themselves to the risk of being shot themselves. Secondly, even if torches were lighted, in view of the large distance, it would not be possible for the witnesses to identify the respondents with absolute certainty. " 47. Paramjit Singh (P. W. 2) has stated that there was Dibbi light at the time of the incident in the room, where his brother Ranjit Singh, Surjit Singh and sister Ranjit Kaur were sleeping. But there is nothing as such in the First Information Report and his statement under Section 161, Cr. P. C. On being confronted, he could not be able to assign any reason for the conspicuous absence of the Dibbi light from there. What has been mentioned in the First Information Report in this connection is that there was Deepak light. But he was given a complete go by to Deepak light. 48. The roof on which he along with his parents was allegedly sleeping to 10-15 minutes before the incident was six felt in height. There is no evidence on record to show that he had entered any of the rooms after allegedly jumping down from the roof. There was no light of any sort inside. The room in which other members were sleeping. Therefore, the question of Paramjit Singh P. W. 2 having seen the commission of the murders of any of the children in any of the rooms in the Dibbi or Deepak light, does not arise. 49. There was no light of any sort inside. The room in which other members were sleeping. Therefore, the question of Paramjit Singh P. W. 2 having seen the commission of the murders of any of the children in any of the rooms in the Dibbi or Deepak light, does not arise. 49. The learned Counsel for the accused-appellant has vehemently argued that the accused-appellant alongwith Lakkha Singh (since dead) cannot be held to have murdered 13 persons in the manner as alleged by the prosecution particularly because some of the deceased must have cried, shrieked or shouted with the result that others could have woken up and offered resistance against them/assailants. But there is nothing as such in the instant case. For this he has relied upon Prem Thakur, Appellant v. State of Punjab, Respondent 1983 (20) A. C. C. 189, wherein it has been inter alia, observed as under: "the prosecution case required for its success the incredible assumption that the five persons done to death by single individual were under such a heavy spell of sleep that none of them woke up when the other or others were attacked. When the first of the five victims were attacked he would have shrieked or shouted and thereby the others would be aroused from their sleep. They were young, able bodied labours. It puts quite some strain on our credulity to accept that a single person could have finished off his five companions in the fiction like manner alleged by the prosecution. 50. As many as 13 persons including father, mother and brothers of the informant Paramjit Singh (P-W 2) were murdered in the incident. He was aged about 13-14 years on the day of his statement in the court. What could have been his mental condition at thetime of the incident and after seeing the dead bodies of 13 persons this can be anybodys guess. However, he along with the village Pradhan Mittar Singh rushed to the police station and lodged an oral report about the incident. A perusal of the report would lead to conclude that such an essary like detailed description in such a long report cannot be expected to have been given by him at the police station particularly in view of the facts and circumstances of the case and in view of his inconceivable mental condition at the time. A perusal of the report would lead to conclude that such an essary like detailed description in such a long report cannot be expected to have been given by him at the police station particularly in view of the facts and circumstances of the case and in view of his inconceivable mental condition at the time. Expressing all this, in the course of his arguments, the learned Counsel Sri P. N. Misra, for the accused-appellant has laid much stress upon the fact that the report is an out come of due deliberation and consultation especially when the village Pradhan Mittar Singh, who was inimical to the accused-appellant, had accompanied the informant Paramjit Singh to the police station and had throughout remained therewith him. He has, in this connection, referred to Ram Lakhan Singh and ors. , Appellants v. State of Uttar Pradesh, Respondent" 1977 CAR 221 (SC) wherein it has been, inter alia, observed in para 29 as under: "another unusual feature is that Ram Naresh Singh, who went to the police station about half an hour after commission of the dacoity leaving three dead bodies in the house would have himself the equanimity and patience to detail an essary of information at the police station. " 51. The testimony of the eye witnesses named above was disbelieved against Jawahar. Consequently he was acquitted by the learned additional Sessions Judge through his impugned judgment and order as mentioned earlier. In view of all this and in view of the observation already made to the effect that no implicit reliance can be placed on testimony of any of them, the question of their being wholly reliable does not arise. This being so, the question of corroboration of their testimony from reliable evidence which is also lacking, does not also arise. Ventilating his argument on this aspect of the matter, the learned Counsel Sri P. N. Misra for the accused-appellant has referred to Vadivelu Thevar Appellant v. The State of Madras Respondent A. I. R. 1957 SC. 614, wherein it has been, inter alia, observed as under: "evidence has to be weighed and not counted. " 52. The statements of the above named alleged eye witnesses on facts do not deserve to be believed. It is not the quantify but the quality of the evidence which weights. 614, wherein it has been, inter alia, observed as under: "evidence has to be weighed and not counted. " 52. The statements of the above named alleged eye witnesses on facts do not deserve to be believed. It is not the quantify but the quality of the evidence which weights. For this the learned Counsel for the accused-appellant has placed reliance upon" Muluwa and others, Appellants v. State of Madhya Pradesh, Respondent AIR 1976 SC 1989, wherein it has been, inter alia, observed as under: "the evidence of an infirm witness does not become reliable merely because it has been corroborated by a number of witnesses of the same brand. " 53. There was as many as 13 murders in the instant case. The learned Counsel for the accused-appellant has argued that the number of casualtities cannot be counted for awarding death sentence. He has for this purpose relied upon" Dalbir Singh and others, Appellants v. State of Punjab, Respondent 1980 S. C. Cr. R. 5, wherein it has been, inter alia, observed asunder: "10. The judgment under appeal is a hint of the judicial confusion even in this grave area of death penalty. True, the jurisprudence of sentencing in Free India has been Cinderella and the values of our Constitution have not adequately humanized the punitive diagnostics of criminal courts, which sometimes, though remind us of the torture some and trigger happy aberrations of the Middle ages and some gory geographic segments, soaked in retributive blood and untouched by the correctional Karuna of our constitutional culture. But after Edigaannarunas case the law of punishment under Section 302, I. P. C. has been largely settled by this Court and the High Courts are bound there by. Rajendra Prasads case and Bishnu Deo Shaws case have indubitably laid down the normative cynosure and until overruled by a larger Bench of the court that is the law of the land under Article 141. To discard it is to disobey the Constitution and such subversiveness of the rule of law, in a crucial area of life and death, will spell judicial disorder. One thing is clear, Counting the casualties is not the main criterian for sentencing to death, nor recklessness in the act of murder. The sole focus on the crime and the total farewell to the criminal and his social personal circumstances mutilate sentencing justice. One thing is clear, Counting the casualties is not the main criterian for sentencing to death, nor recklessness in the act of murder. The sole focus on the crime and the total farewell to the criminal and his social personal circumstances mutilate sentencing justice. We express ourselves in this explicit fashon since the deop rooted Raj criminological prejudice still haunt Free Indias. Courts and govern our mentations from the grave. Today, the law is what Rajendra Prasad, in its majority judgment, has laid down and that has been done at unmistakable length, willynilly, that binds Judges and Parties alike. " 54. The aforesaid contentions of the learned Counsel for the accused-appellant are acceptable to us. 55. After giving our anxious consideration to the pros and cons of the case, we arive at the irresistible conclusion that the prosecution has miserable failed to establish its case against the accused-appellant. 56. In the result the appeal is allowed. The impugned judgment and order is set aside. The accused- appellant is acquitted of the offence with which he has been charged. He is ordered to be released forthwith, if not wanted in any other case. The reference No. 6 of 1992 regarding confirmation of death sentence, awarded to him, is hereby rejected. Appeal allowed. .