N. S. GUPTA, J. Here is an unfortu nate man Babu Lal named above who was convicted under Section 302, IPC and was scntneced to death for committing grue some murder of. his own wife, minor daughter aged about 13 years and minor son aged aout 15 years, on 12-1-94 at about 2-3. 00 a. m. in village Dongra Kalan. police station Narhat, district Lalitpur. The Sessions Judge, Lalitpur sub mitted the record of the case before this court for the confirmation of the death sentnece awarded by him to the accused appellant vide his order dated 27-1-98. The accused appellant feeling aggrieved by the said judgment and order of conviction has come up in appeal before this Court. 2. It appears that the accused appel lant was a poor man. He was having a large family to support consisting of his wife, five sons and two daughtes. He was residing in village Dongra Kalan where his brother Kanchedi (PW-5) was also residing. He too was a poor labourer, but was having a large family consisting of six sons and four daughters. The accused ap pellant was having a small house consist ing of two rooms, a kitchen, a court-yard made of Khaprail and a pacca Kothri in the said village. On the fateful night of occurrene the accused appellant, his daughter Suman (deceased) and son Sunil were sleeping on the ground in one room. In another room his son Rakesh (deceased) Suresh, Naresh and daughter Sandhya were sleeping. There was a door in be tween these two rooms. A lantern was burning therein. His wife Smt. Leela was also sleeping. At about 2. 3 oclock in the morning on 12-1-94, accused appellant and his wife were talking together in con nection with some documents about which they started quarelling. With the result that some of his children who were sleep ing in the two rooms also got up, The ac cused appellant took out a sword from inside his house and assaulted his wife Smt. Leela by means of the same and killed her. He then killed his daughter Suman and son Rakesh. He also attempted to kill his other children who covered themselves with Razai and escaped. On the next day in the morning Dinesh (PW-2) who was the son of the accused appel lant narrated this incident to his uncle Kanchedi (PW-5) who got a report Exh. He then killed his daughter Suman and son Rakesh. He also attempted to kill his other children who covered themselves with Razai and escaped. On the next day in the morning Dinesh (PW-2) who was the son of the accused appel lant narrated this incident to his uncle Kanchedi (PW-5) who got a report Exh. Ka-1 about this incident written and lodged the same at the police station Narhat on 12-1-94 at about 10. 30 a. m. The police station Narhat lays at a distance of about 13 kilometre from the place of oc currence. 3. S. I. Suresh Kumar Verma (PW-11) who was then posted at police station Narhat took up the investigation of the case in his hand. He immediately recorded the statement of Kanchhcdi right at the police station and rushed to the scene of occurrence where he inspected the dead body of the deceased Smt. Leela. Km. Su man and Rakesh. After preparing neces sary inquest reports and other papers S. I. Suresh Kumar Verma despatched these dead bodies through constables Ganga Charan (PW-7) and Tirath Raj for post mortem examination to the district Head quarter Lalitpur. He, thereafter, inspected the scene of occurrence and prepared site plan (Exh. Ka-3 ). He recovered blood stained and simple earth from the scene of occurrence and prepared recovery memos Ka-24, Ka-25 and Ka-26 about the same. He also inspected the lantern which was said to have been burning at the time of occurrence and after preparing supurdgi-nama of the same. He gave it in the su-perdgi of Kanchhedi (PW-5 ). He thereafter recorded the statement of Dinesh (PW-2) and other witnesses viz. Kishnu, Kallu, Balkishan, Dhoban, Banwarilal, Ibrahim, Prem Narayan and Gore Lal. He made search of the accused appellant but he was not available. On 15-1-94, he arrested the accused appellant at about 3. 30 p. m. near the crossing of Vani College, Lalitpur and on his pointing out he recovered the blood stained clothes which the accused appel lant was wearing at the time of occurrence and which consisted of Banyan Towel, pant and Bush- Shirt. He prepared recovery-memo Exh. Ka 8 about the same and ob tained the signatures of the accused appel lant thereon. He prepared recovery-memo Exh. Ka 8 about the same and ob tained the signatures of the accused appel lant thereon. He also recovered stained sword with which the accused appellant had kilhd his wife, daughter and son from a well near the temple of Hanumanji on the pointing out of the accused appellant in the presence of Parasadi (PW-10 ). Sri Prasadi (PW-10) had in fact brought out the said sword from the well on the point ing out of the accused appellant. The in vestigating Officer prepared recovery memo (Exh. Ka-9) about the said sword and had obtained the signature of accused appellant Babu Lal on the same. The In vestigating Officer found a number of in juries on the person of the accused appel lant which the accused Appellant sustained in the scuffle with his wife at the time of occurrence. The Investigating Officer, therefore, referred the accused appellant for medical examination to District Hospi tal. Lalitpur where he was examined by Dr. Suresh Sakhalya (PW-3) on 16-1-94 at about 2. 30 p. m. The doctor Suresh Shankilya found the following injuries on the person of the accused appellant: (1) L. W. 3. 5 cm. x 0. 5 cm x scalp deep on the mid line on head 14 cm. about (Rt) Lar clotted blood present with pus. (2) Abraded contusion 1 cm. x 1 cm. on middle of head. (3) Multiple L. W. 0. 5 cm. x 0. 5 cm x scalp deep to 2 cm x 0. 5 cm. x scalp deep in occipital region in area of 8 cm x 9 cm. (4) Incised wound 3 cm. x 0. 8 cm x mus cle deep on (Lt) palm just above root of (Lt) ring finger. (5) Incised wound 2. 5 cm. x 0. 5 cm. x muscle deep on outer part of Lt. palm. (6) Abrasion 4. 5 cm x 4 cm on the midle of back. (7) Abrasion 12 cm x 8 cm on the back near luted region. (8) Abrasion 2 cm x 0. 5 cm on back of Lt. fore-arm on middle. The Doctor opined that injury Nos. 4 and 5 were caused by sharp object like sword and that injury Nos. 1, 2, 3, 6, 7 and 8 were caused by hard/blunt object. Their duration was about 5 days. 4. Dr. (8) Abrasion 2 cm x 0. 5 cm on back of Lt. fore-arm on middle. The Doctor opined that injury Nos. 4 and 5 were caused by sharp object like sword and that injury Nos. 1, 2, 3, 6, 7 and 8 were caused by hard/blunt object. Their duration was about 5 days. 4. Dr. Suresh Shankilya also con ducted autopsy on the dead body of the deceased Smt. Leela on 13-1-94 at about 1. 30 p. m. that of Km. Suman at about 2. 30 p. m. and that of Rakesh at about 3. 18 p. m. and found the position as under: Deadbody of Leela The deceased was aged about 45 years and had an average body. She had expired about 1-1/2 days prior to the examination. Rigor mortis was present in the lower limbs only. Dr. Shankilya found the following ante-mortem injuries : (1) Incised wound 18. 0 cm x 3 cm x tra chea deep on left side of neck from chin to posteriorly oblique with cutting of underlying vessels, nerves and muscles. (2) Incised wound 6. 0 cm x 5,0 cm on right side of lower part which is cavity deep, loop of intestine was cut. The doctor opined that death of Smt. Leela was caused due to shock and haemoniiage resulting from ante-mortem injuries. Deadbody of Km. Suman The deceased was aged about 13 years. Her body was average built. She died about 1-1/2 days prior to the exami nation. Rigor mortis was present in lower limbs only. There was no sign of decom position. Dr. Shankilya found the following ante-mortem injuries on the person/person of the deceased: (1) Left hand was amputated from wrist joint. (2) Oblique through and through incised wound on (Rt) upto the root of the thumb on upper part of palm. (3) Incised wound 10 cm x 5 cm (Lt) side efface deep. (4) Incised wound 4. 0 cm x 2 cm x cavity deep with perforation of intestine with prolapse out-side. (5) Incised would 8-0 cm x 2. 0 cm x mus cle deep on left knee on outer side. The doctor opined that death was caused due to shock and haemorrhage re sulting from ante-mortem injuries. Dcadbody of Rakesh : The deceased was aged about 15 years and his death took place about 1-1/2 days prior to the examination. Rigor mortis was present in the lower limbs. 0 cm x mus cle deep on left knee on outer side. The doctor opined that death was caused due to shock and haemorrhage re sulting from ante-mortem injuries. Dcadbody of Rakesh : The deceased was aged about 15 years and his death took place about 1-1/2 days prior to the examination. Rigor mortis was present in the lower limbs. His eyes were half closed. The doctor found the following antemortem injuries : (1) Incised wound 15 cm x 3 cm x bone deep obliquely on mandibular region on left side with mandible (lowr jaw ). (2) Incised wound 10 cm x 3 cm x muscle deep with culling of muscle, nerve, left carotid. (3) Incised wound 9 cm x 3 cm x bone deep on upper 1/3 of right hand with fracture of undrlying bone. (4) Incised wound 8 cm x 2 cm x bone deep just above injury No. 3 with fracture of bones. (5) Incised wound 5 cm x 2. 5 cm x bone deep just above wrist joint with fracture of radius and Ulna. (6) Amputation of left hand from fore-arm at level of just above wrist joint. The doctor opined that all the injuries of the tliree deceased were caused by a sword and were sufficient in the ordinary course of nature to cause death. 5. Subsequent investigation into the matter was conducted by S. I. Harihar Ram, the then S. H. O. Narahat w. e. f. 29-1-94. He recorded the statement of Kanchhedi. Parvat, Chhuttan. Naththu, Suresh Kumar, Kanhai, Daya Ram, Gayasi, Sobhran Singh, Ramkishan, Halke, Jangali, Shankar, Khilley, Magan, Prasad, Con stable Ganga Charan and constable Tirathraj Singh. He inspected the spot from where the sowrd used by the accused in the occurrence of this case was recovered on 30-1-94 and prepared site plan Exh. Ka 30 about the said place. He inspected that place from where the blood stained clothes of tbc accused appellant were recovered and prepared site plan Ka-31. He des patched the blood stained clothes and sword for cxaminationa and report by the Chemical Examiner and after concluding bis investigation submitted charge sheet Exh. Ka 32 against the accused appellant. 6. After committal of the case to the Court of Sessions the case came up for trial before the Sessions Judge at Lalitpur who framed charges under Section 302/307, IPC against the accused appellant. Ka 32 against the accused appellant. 6. After committal of the case to the Court of Sessions the case came up for trial before the Sessions Judge at Lalitpur who framed charges under Section 302/307, IPC against the accused appellant. The accused appellant pleaded not guilty and claimed trial. After needful trial into the matter the learned Sessions Judge convicted and sentenced the accused ap pellant as aforesaid, hence the reference in question and the appeal. 7. We have heard Sri R. P. Tripathi, advocte who was appointed as amicus cu-riae to argue the case on behalf of the ac cused appellant and Sri A. K. Misra, learned A. G. A. for State ; considered their contensions, perused the evidence on record and proceed to decide the case as under: FINDINGS : 8. It is clearly proved by the medical evidence of Dr. Shankilya (PW-3) who conducted autopsy on the dead body of the deceased Smt. Leela, Km. Suman and Rakesh on 13-1-94 from 1. 30 p. m. to 4. 00 p. m. that two incised wounds which were measuring 18 cm x 3 cm x trachea deep on left side of neck from chin cutting of un derlying vessels, nerves and muscles and 6 cm x 3 cm on right side, lower part cavity deep, loop of intestine was cut, were found on the dead body of deceased Smt. Leela as ante-mortem injuries and that Smt. Leela had died due to shock and haemor rhage which resulted from the said ante- mortem injuries. The doctor found left hand of the deceased Km. Suman ampul-tated from wrist joint. He found oblique incised wound through and through right upto the root of the thumb on upper part, an incised wound measuring 10 cm x 5 cm x cavity deep, an incised wound 8 cm x 2 cm x muscle deep on left knee outer side as ante-mortem injuries on the person of Km. Surnan who was a minor girl aged about 13 years and a number of incised bounds measuring 15 cm 3 cm x bone deep on mandible region left side lower jaw. Surnan who was a minor girl aged about 13 years and a number of incised bounds measuring 15 cm 3 cm x bone deep on mandible region left side lower jaw. Incised wound measuring 10 cm x 3 cm x muscle deep with cutting of muscles and nerves, incised wound measuring 9 cm x 3 cm x bone deep on upper 1/3rd of right hand with fracture of underlying bone, incised wound 8 cm x 2 cm x bone deep with fracture of bones, incised wound measuring 5 cm x 2 cm x bone deep above right hand with fracture of radius and Ulna and amputation of left hand and fore arm above wrist joint were found as ante-mortcm injuries on the person of Rakesh who was a young boy aged about 15 years as ante-mortem injuries. Dr. Sharikilya stated that the death of all the three de ceased persons was caused due to shock and haemorrhage which resulted from the aforesaid ante-mortem injuries. He clearly stated that the injuries of the three de ceased persons could have been caused by means of a sword on the intervening night of 11/12-1-94 and that they were sufficient in the ordinary course of nature to cause death. 9. Thus, the fact that Smt. Leela, the wife of the accused who was a grown up woman aged about 45 years the adolescent girl Km. Suman and the young boy Rakesh who were then aged 13 and 15 years respetively were brutally assaulted by means of a sword and were instantaneously done to death on the night of occurrence viz. 11/12-1-94 stands fully proved beyond any shadow of doubt by the medical evidence on record. 10. Now the pertinent question which arises for our consideration is to see as to whether the accused appellant was re sponsible for the said murders. 11. The prosecution in support of its case had examined as many as 17 wit nesses. Out of whom only Dinesh (PW-2) was the eye-witnesses of the occurrence. He being the son of the accused, only stated about the fact that his mother Smt. Leela (deceased), sister Km. Suman (deceased) and brother Rakesh (deceased) had died abut 8-9 months back inside his house, but he did not see as to who killed them. Out of whom only Dinesh (PW-2) was the eye-witnesses of the occurrence. He being the son of the accused, only stated about the fact that his mother Smt. Leela (deceased), sister Km. Suman (deceased) and brother Rakesh (deceased) had died abut 8-9 months back inside his house, but he did not see as to who killed them. The other witnesses were : (i) Constable Clihedi Lal (PW-1) who proved the chick report and the G. D. reports; (li) Dr. Suresh Shankilya (PW-3) was the medical officer who conducted autopsy on the dead body of the deceased persons and had also examined the injuries of accused appellant. (iii) Chultan (PW-4) was the scribe of the FIR Exh. Ka-7. (iv) Kanchhedi (PW-5) was the brother of the accused appellant and was the maker of the FIR Exh. Ka-7. (v) Ram Kishan (FW-6) was the witness of recovery of blood stained Banyan, Kameez, Pant and towel which were recovered by the Investigating Officer on the pointing out of the accused appellant. He also witnessed the re covery of the sword used by the accused appel lant for committing the murder of the deceased which was recovered on the pointing out of the accused and had put his signature on the recov ery memo Exh. Ka-9. (vi) Constable Ganga Charan (PW-7) was a formal witness who took the dead body of the deceased persons for post-mortem examination to the mortury. (vii) Magan (PW-8) was the witness of the fact of quarrel of the accused appellant with her wife deceased Smt. Leela, but he turned hostile and stated that he knew nothing about the accused appellant. (viii) Khilawan (PW-9) was witness of fact that accused appellant used to quarrel with his wife on the point of some documents, but he turned hostile before the court below and showed his ignorance even on the point as to when the wife and children of the accused were murdered. (ix) Parsadi (PW-10) was the witness of recovery of the sword in question and had also signed the recovery memo about the same which was prepared by the Investigating Offi cers. (x) S. I. Suresh Kumar Verma (PW-11) was the Investigating Officer who conducted initial investigation of the case. (xi) Constable Ehsan Khan (PW-12) was a formal witness who proved the entry regarding the deposit of incriminating articles in Malkhana register. (x) S. I. Suresh Kumar Verma (PW-11) was the Investigating Officer who conducted initial investigation of the case. (xi) Constable Ehsan Khan (PW-12) was a formal witness who proved the entry regarding the deposit of incriminating articles in Malkhana register. (xii) Bashir Khan (PW-13) was also a formal witness who took blood stained clothes of the deceased, blood stained earth recovered by the Investigating Officer from the scene of occurrence and the sword for examination to the Chemical Examiner Agra. (xiii) Gyasi (PW-14) was an witness of re covery memo prepared by the Investigating Officer regarding the lantern which was burn ing at the scene of occurrence at the time of occurrence which was inspected by the Investi gating Officer. (xiv) Jangley (PW-15) stated that prior to the occurrence of this case, the accused appel lant had disclosed that he wanted to sell out hisland and house, but he failed to oblige the prosecution by stating that the wife of the ac cused appellant was not giving those papers to him. He was also declared hostile by the prose cution. (xv) Shanker (PW-16) was also a witness of this very fact, but he too failed to state that the accused appellant wanted to sell of his land and house but the papers thereof were with his wife. (xvi) Inspector Harihar Ram (PW-17) was the S. H. O. of police station Narahat who con cluded the investigation of the case and had challenged the accused appellant. No evidence in defence was adduced on behalf of the ac cused appellant. 12. It would thus be seen that there is no direct evidence on record to prove the guilt of the accused appellant. 13. The conviction of the accused ap pellant rests upon the following grounds viz. (a) Chain of certain circumstances leading to the guilt of the accused appellant; (b) Recovery of blood stained clothes be longing to the accused appellant on his pointing out, as also the recovery or sword with which the accused appellant had committed the mur der of his wife, son and daughter; (c) The statement of the accused appellant under Section 313, Cr PC. 14. We take up all the aforesaid points for discussion one by one as under : (A) (PW-5) Kanchhedi is the real brother of the accused appellant. 14. We take up all the aforesaid points for discussion one by one as under : (A) (PW-5) Kanchhedi is the real brother of the accused appellant. Although he was hostile to the prosecution, yet he stated in his statement on oath before the court below that the wife, the son and the daughter of the deceased were murdered about 8-9 months prior to his giving his, statement before the court below. The statement of this witness was recorded on 19-11-97. He further stated that the infor mation regrding the murder of the wife, son and daughter of the accused was given to him by Dinesh, the son of the accused appellant when he was present at his house in the early morning. Although he denied to have dictated FIR Exh. Ka-7 yet he very much admitted his signture on the said FIR. He stated that the said FIR was never read out to him. He stated that the said FIR was dictated by the Sub-Inspector of police. When cross-examined by the prosecution, he stted that the dreadly oc currence had taken place about two days prior to Sankranti. Sankranti invariably falls on 13th of January every year. That being so when this witness stated that the occurrence had taken place about 2 days prior to Sankranti, it obviously meant the occurrence of this case. He maintained that prior to his putting signature on the FIR Exh. Ka-7, the FIR was fully written. He admitted that Dinesh (PW-2), the son of the accused appellant had informed him that his mother, brother and sister were lying dead at his house, but he never in quired from him as to who killed them. This was an unnatural conduct of a very close relation of the deceased persons that when informed about their death, he never bothered to enquire as to who killed them. He stated that he had gone to meet this brother accused appellant Babu Lal when the later was lodged in jail and that he came to know after about two months that his brother accused appellant Babu Lal was lodged in jail in connection with the murder of his wife, son and daughter. He admitted to have been residing at a dis tance of about 30-40 paces from the house of the accused appellant. He admitted to have been residing at a dis tance of about 30-40 paces from the house of the accused appellant. He admitted that five children of the accused appellant out of which four were sons and one was the daughter were still alive and admitted that since after the incident of this case, all the five children of accused appellant were living with him and that he has been maintaining them. He himself has got eight children. His income was Rs. 30-35 per day. He stated that he has been facing trouble in maintaining the children of the accused appellant. In reply to a court question he has denied that the wife of the accused appellant was unchaste and beautiful and that her cider daughter Suman was beautiful. He stated that Suman (deceased) was aged about 13 years, the elder son was aged about 8-9 years. He stated that the accused appellant and his wife used to quarrel on petty matters but there was nothing important about the same. He was unable to state as whether the accused appellant bore enmity with anybody. He admitted that immediately on getting information about this incident he went inside the house of the accused appel lant and found all the three persons lying dead. He stated that there was nothing like dacoity having been committed. He denied the suggestion of the prosecution on the point that the accused appellant used to keep the award and also used to display the same in Akhara. It was suggsted on behalf of the prosecution that because he was closely related as brother of the ac cused appellant he was not telling the cor rect fact to the court. 15. (PW-4) Chuttam who is the scribe of the FIR Exh. Ka-7 has very clearly stated in his statement on oath before the court below that on 12-1-94, he had writ ten the FIR Exh. Ka-7 on the dictation of Kanchhedi s/o Kunji Lal resident of vil lage Dongra Kala, police station Narahat viz. (PW-5 ). He further stated that after writing this FIR, he read out the same to Sri Kanchhedi and that Kanchhedi had put his signature thereon. He stated that he also put his signature in the FIR as a scribe. 16. It would thus be seen from the statement of Kanchhedi (PW-5) read with the statement of Chhuttan (PW-4) that the FIR Exh. He stated that he also put his signature in the FIR as a scribe. 16. It would thus be seen from the statement of Kanchhedi (PW-5) read with the statement of Chhuttan (PW-4) that the FIR Exh. Ka-7 was written by Sri Chuttan at the dictation of Kanchhedi (PW-5 ). This FIR reads as under : @hindi@ anrft SJFfthjar TTffcs t % TCTsff ^nt ^efl 12-1-94 ^t 17. According to the statement of constable Chhedi Lal (PW-1) and the In vestigation officer S. I. Suresh Kumar Verma (PW-11) the aforesaid FIR was brought to the police station by Kanchedi (PW-5) and on the basis of (his FIR chick report Exh. Ka-1 and further entries into the General Diary of the police station were made. S. I. Suresh Kumar Verma (PW-11) after copying out this FIR and G. D. entries and after recording the state ment of constable clerk Chhedi Lal re corded the statement of Kanchhedi (PW-5) and rushed to the scene of occurrence. 18. It is, therefore, apparent that the machinery of law was set into motion on the basis of the FIR Exh. Ka-7 which was lodged by the real brother of the accused appellant at police station Narahat about 10. 30 a. m. on 12-1-1994, the police sta tion being situate at a distance of 13 kilo metres from the village of occurrence. 19. True it is that the FIR is not a substantive piece of evidence, it is only a corroborative piece of evidence but then the maker of the FIR turned hostile to this extent as to deny to have dictated the FIR but admits his signatures therein, the averment of the FIR assume significance. A perusal of the said FIR makes it clear that the meticulous details about the occur rence as also the fact that the accused ap pellant was responsible for committing the murder of his wife. Smt. Leela, daughter Km, Suman and son Rakesh by means of a sword inside his house have been men tioned therein, the fact that the informa tion about this incident was conveyed by the son of the accused appellant, Dinesh (PW-2) to his uncle Kanchhedi (PW-5) who was the next kin of his father was a natural conduct of a child like Dinesh who was then age 7-8 years. 20. 20. It is important to note here that Dinesh (PW-2) in his cross-examination by the prosecution stated that the accused appellant was his father and Rakesh (deceased) was his elder brother. He was the eldest child in the family, next to him was Suman (deceased ). He stated that younger to him are three brothers viz. Surcsh. Naresh and Sushil and his sister Sandhya. Kanchhedi was his sole uncle. He had six sons and two daughters have been married. Younger to those daughters there were two brothers who were elder to him. One son of Kanchhedi was of his age group and the other three sons were younger to him in age. He admitted that after the occurrence of this case, he and all his brothers and sister have been living with his uncle Kanchhedi who has been looking after them. He maintained that Kanchhedi (PW-5) was a poor man who was earning 10-20 rupees per day. The children of Kanchhedi were doing the job of selling groundnuts and were earning about 15-20 rupees per day. He stated that when the sun rose, obviously after night of occurrence he found that his mother, sister Suman and brother Rakesh were lying dead. Their hands etc. were cut away. There was blood inside the room. They had died because of the injury. He stated that he, Rakesh, Naresh, Suresh, Sushil and sister Sandhya were sleeping in one and the same room. His mother, brother and father were also sleeping in the same room. Suman was also sleeping in that very room. He stated that half of the room was used as kitchen and half portion thereof was used for sitting purposes, He stated that his mothr and father were not sleeping separately. All of them were sleeping together on the earh. There was a Kuthia (a container for keeping food grains ). His mother was lying dead near the Kuthia and at a distance of about 4-5 peaces, his sister Suman was lying dead. His brother Rakesh was lying dead near kitchen. He stated that he was sleeping near the place where the dead body of Rakesh was lying. He further stated that when in the morning he saw the dead body of his mother, sister and brother, his father was not present at the house. After this incident he did not see his father. He stated that he was sleeping near the place where the dead body of Rakesh was lying. He further stated that when in the morning he saw the dead body of his mother, sister and brother, his father was not present at the house. After this incident he did not see his father. He stated to have seen his father only on the day of his giving evidence before the court below which was recorded on 4-10-94. He showed his ignorance on the point that the police had arrested his father. He stated that he did not get up during night and maintained that in the early morning he himseif got up and after getting up he went to his uncle Kanchhedi and informed him about the murder of his mother, sister and brother. He denied to have informed his uncle Kanchhedi that during the night his father killed his mother, brother and sister and also tried to kill him or that he concealed himself inside the Razai. He stated that the house of his uncle was situate at some distance. There was nobody house adjoining to his house. There were houses at some distance. He maintained that there was no sword inside his house nor his father used to participate with the sword in Akhara. He admitted that during the night his father had slept with him. He denied to have gone to police station alongwith his uncle and maintained that the FIR about the occurrence was got written by his uncle. He showed his igno rance on the point as to whether his father had sustained some injury or not, but maintained that the police came and took away all the three dead bodies. The police officials had interrogated him. His statement recorded by the Investigating Officer under Section 161. Cr PC was read over to him, but he denied to have given such statement. He did not offer any explana tion as to how such statement was re corded by the police. He admitted that his father was in jail and he was feeling ill of it. He has been feeling trouble since after the occurrence of this case. He admitted that at times he had to remain hungry. His uncle is also feeling trouble because of him and his brothers and sister and wanted that his father be released from jail. He admitted that his father was in jail and he was feeling ill of it. He has been feeling trouble since after the occurrence of this case. He admitted that at times he had to remain hungry. His uncle is also feeling trouble because of him and his brothers and sister and wanted that his father be released from jail. In reply to a court question lie stated that there was no quarrel inbelween his father and mother prior to the occurrence of this case. His father was having no enmity with his mother (deceased), brother (deceased) and sister (deceased ). His brother Rakcsh (deceased) was the eldest. He maintained that when he got in the morning no goods were stolen away from his house. No body bore enmity with his deceased mother, brother or sister. 21. The public prosecutor had drawn Ihe attention of this witness towards the defence counsel and after seeing him this witness stated that he recognised him, but he never visited him alongwith his uncle Kanchhedi. He denied the suggestion of the prosecution on the point that the statement which he had given before the court below was tutored to him by the de fence counsel. He further, denied the sug gestion of the prosecution on Ihe point that his father had committed the murder of his mother, brother and sister right in his presence and that he was not telling the correct facts before the court. In reply to the question of defence counsel, he staled that he did not know as to what day it was when the occurrence had taken place. He maintained that the lantern was put off when he had gone to sleep. He stated that police officials did not take out the blood stained earth in a sealed cover. He was unable to state as to what clothes his mother was wearing. He was unable to state as to whether or not her mother was wearing any ornament in her hand or legs. He replied to the suggestion of the defence that he did not sec the occurrence and knew nothing about the same. 22. Blood is thicker than water. (PW-5) Kanchhedi being real brother of the accused appellant and (PW- 2) Dinesh be ing the son of the acused appellant, it was natural for them to have turned hostile. He replied to the suggestion of the defence that he did not sec the occurrence and knew nothing about the same. 22. Blood is thicker than water. (PW-5) Kanchhedi being real brother of the accused appellant and (PW- 2) Dinesh be ing the son of the acused appellant, it was natural for them to have turned hostile. But whatever, statement they have given before the court below during the course of their cross- examination by the public prosecutor they clearly establish atleast the following facts : (i) That the deceasd persons viz. Smt. Leela, Km. Suman and Rakesh were murdered inside the house of the accused appellant dur ing the night proceeding the visit of S. I. Suresh Kumar Verma (PW-11 ). (ii) That the accused appellant and his brother were poor persons who were finding it difficult to make both the ends meet with their meagre income. When according to the state ment of Sri Dinesh (PW-2) who appears to be grown up child, capable of full understanding it is clear that when he had gone to sleep his father was very much present there inside the house and when he got up he found his mother, brother and sister lying dead in the pool of blood and his lather was missing from there. It leads to only one inference that his father and father alone viz, accused appellant Babu Lal was responsible for murder of the deceased persons, otherwise he should have been the first man to go to police station or atleast to his brother Kanchhedi (PW-5) to narrate the story of the dreadful incident. 23. The circumstances that instead of doing so, the accused appellant absconded and was not traceable to the police for about three days is the circumstance which points out to the guilt of the accused appel lant. 24. The prompt lodging of FIR Exh. Ka-7 by (PW-5) Kanchhedi at police sta tion Narahat at 10. 30 a. m. the police sta tion being situate af a distane of about 13 kilometres from the village of occurrence and thereby setting the machinery of law into motion too is the indicator of the guilt of the accused appellant. It is clear from the statement of S. I. Suresh Kumar Venna (PW-11) that he had arrested the accused appellant on 15-1-94 at about 3. It is clear from the statement of S. I. Suresh Kumar Venna (PW-11) that he had arrested the accused appellant on 15-1-94 at about 3. 30 p. m. at Lalitpur and after proper interrogation the accused appellant disclosed to get the sword used by him in the occurrence of this case, as also blood stained clothes which he was wearing at the time of occurrence recovered. He came to village Dongra kala and alter taking Ramkishan (PW-6) and Halke he reached lo the house of the accused appellant from where the accused appellant brought a Banyan, Towel, pant and Bush-shirt which were all blood stained. All these clothes were taken by S. I. Suresh Kumar Verma (PW-11) in his possession alter preparing recovery memo Exli. Ka-8, which was duly signed by accused appellant as also Ram Kishan (PW-6), consta ble Ram Babu and witness Halke. Alter prepar ing the recovery memo Exli. Ka-8, S. I. Suresh Kumar Verma (PW- 11) went to the well situate near the Hanumanji temple in which the ac cused appellant had thrown away sword which was used by him for the commission of the crime in question and from that well he got the sword recovered through Parasdi (PW-10 ). A recovery memo Exh. Ku-9 was duly prepared and was signed by the accused appellant as also Parsadi (PW-10), Ram Kishan constable Ram Babu and Halke. 25. (PW-6) Ram Kishan clearly stated in his statement on oath before the court below about the recovery of the Banyan, Kameez, pant and Towel which were stained blood on the pointing out of the accused appellant as also his signatures on trie recovery memo Exh. Ka-7 about those articles. He further stated about the recov ery of sword and his signatures on the re covery memo of the said sword Exh. Ka-9. 26. Similarly Parsadi (PW-10) stated that the accused appellant had informed the Investigating Officer that he had thrown away the sword in question in the well situate near the Hanuman Temple. He stated that he brought out sword in ques tion from the said well. 27. It would thus be seen that besides the testimony of the Investigating Officer S. I. Suresh Kumar Verma (PW-11) the testimony of independent witnesses viz. He stated that he brought out sword in ques tion from the said well. 27. It would thus be seen that besides the testimony of the Investigating Officer S. I. Suresh Kumar Verma (PW-11) the testimony of independent witnesses viz. Ram Kishan (PW-6) and Parsadi (PW-10) is available on record which proves the recovery of blood stained clothes and sword on the pointing out of the accused appellant. 28. Ex. Ka-37 is the report of the chemical examiner. According to this re port S. No. 26 was a sword, S. No. 27 was a white pant. S. No. 28 was a Banyan. These articles are those articles which were recovered by the Investigating Offi cer on the pointing out of the accused ap pellant. According to this report blood stains were found on these articles. It is further clear from this report that human blood was found upon towel and banyan. The existence of human blood on the towel and banyan and the blood on the sword in question which articles were recovered at the instance of the accused appellant are the clear indicator of the guilt of the ac cused appellant. 29. The third and the most important circumstance against the acused appellant is his own statement which was recorded by the court below in accordance with the provisions of Section 313, Cr PC. The provisions of Section 313, Cr PC read as under: 313. Power lo examine the accused.- (1) In every inquiry or trial, for the purpose ena bling the accused personally to explain any circumstances appearing in the evidence against him, the court:- (a) may at any stage, without previously warning the accused, put such questions to him as the Court considers necessary. (b) shall, alter the witnesses for the prose cution have been examined and before he is called on for his defence, question him gener ally on the case; Provided that in a summons-case, where the court has dispensed with the personal at tendance of the accused, it may also dispense with his examination under clause (b ). (2) No oath shall be administered to the accused when he is examined unde sub-section (1 ). (3) The accused shall not render himself liable to punishment by refusing to answer such questions, or by giving false answers to them. (2) No oath shall be administered to the accused when he is examined unde sub-section (1 ). (3) The accused shall not render himself liable to punishment by refusing to answer such questions, or by giving false answers to them. (4) The answers given by the accused may be taken into consideration in such inquiry or trial and put in evidence for or against him in any other inquiry into, or trial for, any other offence which such answers may tend to show he has committed. 30. Some questions put to the accused appellant under Section 313, Cr PC and the reply given by him were as follows : Type Hindi 31. Sri R. P. Tripathi, learned amicus curiae defending the accused appellant has vehemently argued before us that the statement given by the accused appellant under Section 313, Cr PC cannot be made the basis of his conviction. It is not possi ble to appreciate the argument of the learned amicus curiae, defending the accused appellant for the reason that the matter regarding the statement of the ac cused made under Section 313, Cr PC came up for consideration before the Apex Court in Criminal Appeal No. 234 of 1993 State of U. P. v. Luxmi, AIR 1998, SC 100. Their Lordship in paragraphs 1 and 8 of the said judgment had observed as follows: "7. As a legal proposition we cannot agree with the High Court that statement of an ac cused recorded under Section 313 of the Code does not deserve any value of utility if it contains inculpatory admissions. The need of law for examining the accused with reference to incriminating circumstances appearing against him in prosecution evidence is not for obser vance of a ritual in a trial, nor is it a mere for mality. It has a salutary purpose. It enables the Court to be apprised of what the indicated per sons has to say about the circumstances pitted against him by the prosecution. Answers to the questions may sometimes be flat denial or out right repudiation of those circumstances. In certain cases accused would oiler some expla nations to incriminative circumstances. In very rare instances accused may even admit or own incriminating circumstances adduced against him, perhaps for the purpose of adopting le gally recognised defences. Answers to the questions may sometimes be flat denial or out right repudiation of those circumstances. In certain cases accused would oiler some expla nations to incriminative circumstances. In very rare instances accused may even admit or own incriminating circumstances adduced against him, perhaps for the purpose of adopting le gally recognised defences. In all such cases the Court gets the advantage of knowing his ver sion about those aspects and it helps the Court to effectively appreciate and evaluate the evi dence in the case. If an accused admits any incriminating circumstances appearing in evi dence against him there is no warrant that those admissions should altogether be ignored merely on the ground that such admissions were advanced as a defence strategy. 8. Sub-section (4) of Section 313 of the Code contains necessary support to the legal position that answers given by the accused during such examination are intended to be considered by the Court. The words "may be taken into consideration in such enquiry or trial" in sub-section (4) would amount to a legislative guideline for the Court to give due weight to such answers though it does not mean that such answers could be made the sole basis of any finding. " 32. So that being the position of law, it is not possible for us to ignore the ad missions made by the accused appellant himself in his examination before the court below when the accused appellant in reply to question No. 1 to the effect that on the intervening night of 11/12-1-1994 at about 2-3 a. m. the accused appellant inside his house situate in Dogra Kala in connection with the quarrel on certain papers commit ted the murder of his wife Smt. Leela, daughter Km. Simian and son Rakesh by causing injuries to them by means of a sword, the accused replied that it was cor rect, it is obvious that the accused appel lant could not conceal his guilt at the time of his examination before the court below and came forward with a frank answer that it was correct to suggest that he was re sponsible for the murder of his wife, daughter and son by means of a sword on the intervening night of 11/12-1-94 inside his house situate in village Dogra Kala. 33. 33. The circumstances that in reply to question No. 5 that with a view to escape from legal consequences regarding his arrest the accused absconded from the spot, the accused appellant stated that he ran away from the back-side door of his house and throw away the sword in a well situate near the Hanuman Temple, fully proves that the sword which was recovered on the pointing out of the accused appel lant by the Investigating Officer from the well near Hanuman Temple by Parsadi (PW-10) was that very sword with which the accused appellant had committed the ghastly murders in question. 34. Further the circumstance that the lantern was burning inside the house of the accused appellant at the time of occur rence as admitted by the accused in reply to question No. 16, fully go to prove that there was sufficient light inside the house in which his son Dinesh (PW-2) could have seen the entire incident and in turn he narrated the same to his uncle Kanch-hedi (PW-5) on the basis of which Kanchhedi (PW-5) lodged written report Exh. Ka-7 and set the machinery of law into motion. 35. Thus, the finding of fact recorded by the court below regarding the guilt of the accused appellant punishable under Section 302, IPC in connection with the murder of his wife, daughter and son admits of no doubt and appears to be abso lutely corect. It is accordingly sustained. 36. Coming on the point of sentence, we find, that the accused appellant was a poor man who was having a big family to support. It appears that probably the ac cused appellant was interested in the dis posal of his house and land to which his wife resisted because she had a number of children to support. The devil mind of the accused appellant persuaded him to elimi nate his own family in anguish over the conduct of his own wife in her refusing to handover the necessary papers to him as suggested by the prosecution. The devil mind of the accused appellant persuaded him to elimi nate his own family in anguish over the conduct of his own wife in her refusing to handover the necessary papers to him as suggested by the prosecution. Having re gard to the poverty to the accused appel-lant and the circumstances in which he appears to have committed the ghastly murder of his own wife, daughter and son, it appears that at the time of committing the said offence the accused appellant was deprived of his power of self- control and committed ghastly murder of his own wife and children rather in an excitement. 37. Thus, the sentence of death in flicted by the court below upon the accused appellant docs not appear to us to be proper one. We accordingly commute the said sentence of death into imprisonment for life and accordingly the reference No. 3 of 1998 regarding the confirmation of death sentence of the accused appellant made by the Sessions Judge, Lalitpur is hereby rejected. 38. Thus, in the result the appeal of the accused appellant is hereby dismissed. His conviction under Section 302, IPC is maintained. However, the death sentnece is commuted to life imprisonment. 39. Let a copy of this order be sent to the jail authorities to be conveyed to the accused appellant. 40. We further direct the Registrar of this court to pay a sum of Rs. 2,000/- (Rupees two thousand) as fee of Sri R. P. Tripathi for the assistance rendered by him to this as amicus curiae. Sri R. P. Tripathi, learned amicus cu riae made an oral prayer for grant of a certificate for appeal to the Supreme Court in accordance with the provisions of Arti cle 134 (1) (c) of the Constitution of India read with Article 134 (A ). Having regard to the fact and circumstances of the pres ent case, leave sought for is hereby granted. Having regard to the fact and circumstances of the pres ent case, leave sought for is hereby granted. Since this appeal was preferred by the accused from jail in which the court had appointed amicus curiae to argue this appeal on behalf of the accused appellant and on whose request leave to appeal to Supreme Court has been granted by us, we direct the Registrar of this Court to im mediately transmit the record of the case to the Supreme Court of India through its Registrar General for getting the appeal registered in the Supreme Court in acor-dance with the rules and procedure of the Supreme Court of India. Appeal dismissed.