M. C. JAIN, J. ( 1 ) CRIMINAL Appeal No. 2 of 1998 has been preferred by the accused-appellants Suresh and Ramji against the judgment and order dated 19-12-1997 passed by Sri U. S. Tripathi, the then Sessions Judge, Varanasi in Sessions Trial No. 58 of 1997. Pavitri Devi wife of Suresh is the appellant of Criminal Appeal No. 18 of 1998. The accused-appellants Suresh and Ram Ji have been convicted under S. 302, IPC, 307, IPC and 449, IPC. Death sentence has been awarded to each on them under S. 302, IPC, seven years rigorous imprisonment under S. 307, IPC and five years rigorous imprisonment under S. 449, IPC. The accused-appellant Pavitri Devi has been sentenced under S. 302, IPC read with S. 34, IPC and 307, IPC read with S. 34, IPC. She has been sentenced to life imprisonment under S. 302, IPC read with S. 34, IPC and five years rigorous imprisonment under S. 307, IPC with a direction that both the substantive sentences would run concurrently. ( 2 ) THE learned Sessions Judge who passed the impugned judgment and order has made a reference (reference No. 1 of 1998) under S. 366, Cr. P. C. for the confirmation of the death sentence passed against the accused-appellants Suresh and Ramji. ( 3 ) IT is a case in which five persons were murdered and the sixth one (Jitendra) sustained injuries. The deceased of the incident were (1) Ramesh (35 years ). (2) Smt. Ganga Dei (28 years) wife of Ramesh, (3) Bheem (3 years) son of Ramesh and Ganga Dei, (4) Km. Manisha (9 years) daughter of Ramesh and Ganga Dei and (5) Km. Anisha (one year) daughter of Ramesh and Ganga Dei. Jitendra (8) injuried is also the son of Ramesh and Ganga Dei. ( 4 ) THE prosecution story as unfolding from the first information report and the evidence adduced in the Court may be narrated briefly. The accused-appellant Suresh aged about 43 years and his wife Pavitri Devi aged about 30 years resided in Jivadhipur, Police Station Bhelupur, District Varanasi. Accused-appellant Ram Ji is the brother-in-law of Suresh and brother of Pavitri Devi and he was the resident of Mohalla Naya Purwa, Police Station Kotwali. District Varanasi. Lalji (P. W. 1), Babu Lal (since deceased), Panna Lal (since deceased) and Narayan were real brothers and sons of Molai. Accused-appellant Ram Ji is the brother-in-law of Suresh and brother of Pavitri Devi and he was the resident of Mohalla Naya Purwa, Police Station Kotwali. District Varanasi. Lalji (P. W. 1), Babu Lal (since deceased), Panna Lal (since deceased) and Narayan were real brothers and sons of Molai. Panna Lal had three sons Naresh, Suresh (accused-appellant) and Ramesh (deceased), Ramesh too resided with his family in Jiwadhipur, P. S. Bhelupur in the neighbourhood of the accused-appellant Suresh. Lalji P. W. 1 was issueless and, therefore, he had adopted his nephew Naresh brother of Suresh (accused-appellant) and Ramesh deceased. Panna Lal father of Suresh appellant and Ramesh deceased had partitioned his properties in his lifetime between Suresh (accused-appellant) and Ramesh (deceased ). Naresh having been adopted by Lalji P. W. 1 he was not given any share in the property of his father Panna Lal. Suresh (accused-appellant) and Ramesh (deceased) were living separately in their separate houses. In between their houses, there was the house of Babulal, their uncle. Towards the back of the house of Ramesh (deceased) there was some open land and the same had also been partitioned between him and Suresh (accused-appellant ). Each of them had got half share. Suresh (accused-appellant) was not satisfied with the partition of that land and was insisting for entire land. Ramesh (deceased) was not ready to part with the land that had fallen to his share. On this score, there used to be altercations and quarrels between the two every now and then. Suresh (accused-appellant) was very much annoyed of Ramesh (deceased) on this account. ( 5 ) THE incident took place in between the night of 5/6th October, 1996 at about 2 a. m. Ramesh (deceased) was sleeping in his house along with his wife Ganga Dei, sons Jitendra and Bhim and daughters Km. Manisha and Anisha. Lalji P. W. 1 was sleeping in the house of his brother Babulal situated in between the houses of Ramesh (deceased) and Suresh accused-appellant. An electric bulb on the electric pole was emitting light in front of the house of Ramesh deceased. There was also electric bulb light inside his house. Jitendra injured P. W. 3, his brother Bhim and sister Manisha were sleeping on one cot whereas Ramesh (deceased) and his wife Ganga Dei together with Anisha were sleeping on a Chauki. An electric bulb on the electric pole was emitting light in front of the house of Ramesh deceased. There was also electric bulb light inside his house. Jitendra injured P. W. 3, his brother Bhim and sister Manisha were sleeping on one cot whereas Ramesh (deceased) and his wife Ganga Dei together with Anisha were sleeping on a Chauki. At about 2 a. m. , the accused-appellant Suresh armed with a knife and accused-appellant Ramji armed with an axe entered the house of Ramesh (deceased) and they started causing injuries with their respective weapons to Ramesh (deceased), his wife Ganga Dei, his son Jitendra (injured) P. W. 3, another son Bhim (deceased) and daughters Manisha and Anisha (both deceased ). Lal P. W. 1 and Amar Singh P. W. 2 heard shrieks and cries emanating from the house of Ramesh deceased. Amar Singh P. W. 2 used to run a shop and also lived therein which was situated across the lane of the house of Ramesh deceased. Hearing the shouts of shrieks coming out from the house of Ramesh deceased, both these witness rushed towards his house. On reaching at his house, they found the accused-appellant Pavitri Devi to be standing at the door. The door planks were open. One Kalloo had also appeared there. All of them rushed towards the room of Ramesh deceased. They observed inside the room that Suresh accused-appellant was having a knife and Ram Ji accused-appellant had an axe and both of them were inflicting blows on Bhim Singh deceased and Manisha deceased. On the alarm of the above witnesses, Suresh and Ram Ji accused-appellants ran away extending threats to them. When these witnesses proceeded further in the room of Ramesh deceased, they found Ramesh, his wife Ganga Dei, son Bhim Singh and daughters manisha and Anisha to be lying injured and dead, Rameshs son Jitendra P. W. 3 was also injured but alive. In the meantime. Naresh, adopted son of Lalji P. W. 1 and several other persons also came to the spot. Naresh took Jitendra P. W. 3 to the S. S. P. G. Hospital Kabir Chaura, Varanasi. The witnesses also found that in the room of Ramesh where the incident took place, an aperture had been made in an outer wall. ( 6 ) LALJI P. W. 1 got a report Ex. Naresh took Jitendra P. W. 3 to the S. S. P. G. Hospital Kabir Chaura, Varanasi. The witnesses also found that in the room of Ramesh where the incident took place, an aperture had been made in an outer wall. ( 6 ) LALJI P. W. 1 got a report Ex. Ka 1 prepared by Bhaiya Lal Sonkar and took the same to the Police Station Bhelupur where he lodged the same at 3. 15 a. m. On the basis of the same, Constable Clerk Brigunath Sharma P. W. 9 prepared a Chick FIR and made related entry in G. D. A case was registered against the accused-appellants under Ss. 302, 307, 452 and 506, IPC as case crime No. 322 of 1996. ( 7 ) THE investigation of the case was taken up by Inspector Raj Narain Singh P. W. 7. He along with other police personnel proceeded to the spot. He recorded the statement of Lalji P. W. 1, Inquest reports of the five deceased were prepared together with other relevant papers. He inspected the spot and engaged himself in other activities relating to the investigation of the case. The accused-appellants were searched but were not found at their houses at that time. Five dead bodies were sealed separately and sent for post-mortem through Constable Paras Nath Dubey and Constable Raj Ballabh Rai. ( 8 ) IT was in the evening of 6-10-1996 that on a tip off, the Investigating Officer apprehended Suresh and Ram Ji accused-appellants at Lakhraon tri-crossing and interrogated them. They allegedly got recovered the axe Ex. 1 and the knife Ex. 2 (weapons of offence) from the house of one of them Suresh Ramesh Chauhan P. W. 8 is said to be a public witness in this behalf. The accused-appellant Pavitri Devi was also arrested by the Investigating Officer on 6-10-1997 itself. ( 9 ) IT would be appropriate at this stage to set out the outcome of the post-mortem reports of each of the five deceased of this offence and of the injury report of the injured Jitendra P. W. 3. The autopsy over the dead bodies of all the accused had been conducted by Dr. C. M. Tewari P. W. 5. Post-mortem report of Ramesh deceased. The autopsy over the dead bodies of all the accused had been conducted by Dr. C. M. Tewari P. W. 5. Post-mortem report of Ramesh deceased. ( 10 ) THE post-mortem over his dead body was conducted on 6-10-1996 at 3-30 p. m. The deceased was aged about 35 years and about 3/4 days had passed since he died. The following ante-mortem injuries were found on his person : 1. Incised wound on left side neck, 10 cm. x 2 cm. x brain deep touching to head and left ear, above and behind. 2. Incised chopped wound 10 cm. x 3 cm. into bone deep, cervical level. 3. Incised wound 4 cm. x 1 cm. x muscle deep, I cm. below injury No. 2 on back of neck. 4. Incised wound on back of chest and neck 10 cm. x 2 cm. x muscle deep. ( 11 ) ON internal examination temporal and parietal bones of left side were found fractured. Membranes were pale and ruptured. Brain was ruptured. Cervical vertebrae No. 1 was cut. Spinal cord was ruptured at cervical 1 level. The death according to the opinion of the Doctor was instantaneous as a result of injuries to brain and spinal cord. Post-mortem of Ganga Dei deceased ( 12 ) SHE was aged about 28 years and had died about 3/4 days before. The following ante-mortem injuries were found on her person at the time of her post-mortem examination on 6-10-1996 at 4 p. m. 1. Incised chop wound on left side scalp 10 cm. x 3 cm. into brain deep 1 cm. above left ear. 2. Incised wound on left face 6 cm. x 1 cm. x bone deep. 3. Stab wound 5 cm. x 2 cm. into cavity deep. left side chest, 24 cm. below left clavicle, 6 cm. above coastal margin. 4. Incised chop wound on left dorsam of wrist. 5 cm. x 3 cm. into bone deep. 5. Incised chop wound 12 cm. x 2 cm on back of head into bone deep. 6. Incised chop wound 10 cm. x 2 cm. on left side back of head, 2 cm. behind left ear, bone deep. ( 13 ) ON internal examination, the Doctor found that temporal, occipital and parietal bones of left side were fractured. Membranes were reptured. Brain was ruptured on left side. Cervical vertebrae was fractured. Spinal cord was ruptured. 6. Incised chop wound 10 cm. x 2 cm. on left side back of head, 2 cm. behind left ear, bone deep. ( 13 ) ON internal examination, the Doctor found that temporal, occipital and parietal bones of left side were fractured. Membranes were reptured. Brain was ruptured on left side. Cervical vertebrae was fractured. Spinal cord was ruptured. 7th and 8th rib were fractured. Pleura was ruptured on left side. Left lung was ruptured. The death was instantaneous and was the result of injury to brain and spinal cord. Post-mortem of Km. Manisha deceased ( 14 ) POST-MORTEM over the dead body of Km. Manisha was conducted on 6-10-1996 at 4-30 p. m. She was aged about 9 years and had died about 3/4 days before. The following ante-mortem injuries were found on her person : 1. Incised chop wound 6 cm. x 2 cm. into bone deep on left side neck, 4 cm. below left ear. Cervical C3 and spinal cord ruptured. 2. Incised chop wound 10 cm. x 6 cm. into bone deep on front of left shoulder and chest. 3. Incised wound 3 cm x 1 cm. into muscle deep, middle part upper and lower lip. ( 15 ) ON internal examination, the Doctor found cervical vertebrae No. 3 fractured. Spinal cord was ruptured. Trachea was ruptured. Oesophagus was ruptured. As per the opinion of the Doctor, the death was instantaneous as a result of (injury) to vital organs, shock and haemorrhage. Port-mortem of Bhim Singh deceased ( 16 ) POST-MORTEM over the dead body of Bhim Singh was conducted on 6-10-1996 at 5 p. m. He was aged about 3 years and had died 3/4 days before. The following ante-mortem injury was found on his person : 1. Incised chop wound 10 cm x 4 cm. x bone deep on right side head and neck on posterior aspect. Cervical 2 vertebrae was fractured. ( 17 ) ON internal examination, the Doctor found membranes and brain pale. Cervical vertebrae No. 3 was fractured. Spinal cord was ruptured. Larynx and trachea were ruptured. Oesophagus was cut. As per the opinion of the doctor, the death was instantaneous as a result of injury to spinal cord, trachea and oesophagus and shock and haemorrhage. Post-mortem of Km. Anisha deceased. Cervical vertebrae No. 3 was fractured. Spinal cord was ruptured. Larynx and trachea were ruptured. Oesophagus was cut. As per the opinion of the doctor, the death was instantaneous as a result of injury to spinal cord, trachea and oesophagus and shock and haemorrhage. Post-mortem of Km. Anisha deceased. ( 18 ) POST-MOTEM over her dead body was conducted on 6-10-1996 at 5-30 p. m. she was aged about one year and about 3/4 days had passed since she died. The following ante-mortem injuries were found on her person. 1. Incised chop wound 10 cm. x 2 cm. on left side scalp, brain deep, left side nose, fore-head, eye brow, 5 cm. above left ear. 2. Incised wound 3 cm x 2 cm on right arm, outer aspect, 4 cm below top of shoulder into muscle deep. 3. Incised wound 5 cm x 0. 5 cm into muscle deep on right side upper part, I cm. below clavicle, 3 cm outer to mid-line. ( 19 ) ON internal examination, the Doctor found that left side temporal, frontal and nasal bones were fractured. Membranes and brain were ruptured. The Doctor opined that the cause of death was coma as a result of head and brain injuries. ( 20 ) THE medical examination of Jitendra P. W. 3 was conducted on 6-10-1996 at 3. 50 a. m. by Dr. S. K. Verma P. W. 6. He was aged about 8 years. The following injuries were found on his person; 1. Incised wound 1 cm. x 1/2 cm. x depth not probed, on left scapular region kept under observation. Advised x-ray. 2. Incised wound 4 cm x 1/2 cm. x muscle deep on left scapular region, 1 cm. above injury No. 1. 3. Incised wound 2 cm x 1/2 cm. x muscle deep on right scapular region. 4. Abraded contused swelling 6 cm x 4 cm. on scapular region. Kept under observation. Advised X-ray. ( 21 ) INJURIES Nos. 1 and 4 had been kept under observation. Rest were simple. Injuries No. 1, 2 and 3 were caused by some sharp cutting weapon whereas injury No. 4 had been sustained by blunt object. ( 22 ) AFTER conclusion of the investigation, the accused-appellants were booked for trial and were tried in Sessions Trial No. 58 of 1997 before the Sessions Judge, Varanasi. Rest were simple. Injuries No. 1, 2 and 3 were caused by some sharp cutting weapon whereas injury No. 4 had been sustained by blunt object. ( 22 ) AFTER conclusion of the investigation, the accused-appellants were booked for trial and were tried in Sessions Trial No. 58 of 1997 before the Sessions Judge, Varanasi. The defence of the accused-appellant Suresh and his wife Pavitri Devi was that their ancestral property had been partitioned by the father of Suresh and there was no dispute between brothers. According to them, Ramesh and his family members had been murdered in the night by unknown persons and none saw the occurrence. When the occurrence came to light in the morning, they were falsely implicated by Lalji P. W. 1 who wanted to usurp the properties of Ramesh deceased and Suresh accused-appellant, both. ( 23 ) THE defence of Ram Ji accused-appellant was that Ramesh and his family members were murdered in the night by unknown persons and he had been falsely implicated being the relative of Suresh. Suresh and Ramji further denied that any recovery was made at their instance. According to them, they had been apprehended from their respective houses to be implicated in this case falsely. ( 24 ) BESIDES relying on documentary evidence, the prosecution examined as many as nine witnesses out of whom Lalji P. W. 1, Amar Singh P. W. 2 and injured Jitendra P. W. 3 (child witness) were examined as eye-witnesses. The rest were two Doctors. Investigating Officers and other formal witnesses. None was examined by the accused-appellants in their defence. ( 25 ) ON appraisal of the evidence and material on record, the learned Sessions Judge found the case of the prosecution to be proved against the accused-appellants. He, accordingly, passed the judgment of conviction and sentence as related in the earlier part of the judgment. The matter is now before this Court. ( 26 ) WE have heard Sri A. D. Giri, learned counsel for the appellants and learned A. G. A. on behalf of the State assisted by Sri V. C. Tiwari, Advocate on behalf of the complainant. In our quest to arrive at the right conclusion and to appreciate the arguments advanced across the bar, we have also carefully waded through the evidence and material on record. In our quest to arrive at the right conclusion and to appreciate the arguments advanced across the bar, we have also carefully waded through the evidence and material on record. We wish to deal with the arguments advanced by the learned counsel for the appellants in the succeeding discussion one by one. ( 27 ) IT has first been argued by the learned counsel for the appellants that they had no motive to commit this crime. It has been urged that the motive assigned by Lalji P. W. 1 is too weak and tenuous. It has been reasoned that over the question of a small piece of land the accused-appellant Suresh could not at all be actuated to commit five murders in the family of his brother consisting of his brother, wife and their children with the assistance of his own wife and brother-in-law. It would be recalled that the case of the prosecution has been that there lay some open land in the back side of the houses of Suresh accused-appellant and Ramesh deceased which had been partitioned between them half and half but Suresh accused-appellant was not satisfied and wanted the entire land. On this account, there used to be frequent quarrels between the two brothers. It has been alleged to be the motive for the commission of this crime as stated by Lalji P. W. 1. It is pertinent to observe that motive precedes into background when there is direct and positive evidence regarding commission of a crime by a particular person (s) as is the case here. Moreover, motive is not evidence in a case. Motive for commission of a crime is exclusively known to the culprit and others, including the prosecution, can only guess about it on the basis of previous background, if any. What is required of the prosecution is that previous background, if any, relating to an incident be disclosed. That has been done by the prosecution in the present case as to what was the bone of contention between Suresh accused-appellant and his brother Ramesh deceased. It is also to be taken note of that people react to the same situation in different ways. Some are so hot headed that they act in extremity over minor issues whereas others reconcile even to colossal losses. It is also to be taken note of that people react to the same situation in different ways. Some are so hot headed that they act in extremity over minor issues whereas others reconcile even to colossal losses. Therefore, our view is that in the present case the accused-appelant cannot gain any point by arguing out the absence or insufficiency of motive. The reason is that the previous background has truthfully been disclosed by Lalji P. W. 1 in unalloyed terms and there is direct ocular testimony regarding the commission of this crime. The question of culpability of accused-appellants is to be judged in the discussion that follows. ( 28 ) THE second argument of the learned counsel for the appellants is that the first information report was ante timed and it had not been lodged at 3. 15 a. m. on 6-10-1996 as alleged by the prosecution. The argument has been sought to be supported by the fact that in the inquest reports of the five deceased persons the crime number was inserted by the Investigaging Officer subsequently. It has also been pointed out that in the Challans of the dead bodies no crime number at all has been mentioned. A reference has been made to the testimony of the Investigating Officer Raj Narain Singh P. W. 7 who stated that the preparation of last Panchayatnama had been finished by him on 6-10-1996 at 11. 50 a. m. On this score, it has been reasoned that actually first information report was not even ready by the time the Panchayatnamas, Challans of dead bodies etc. had been completed. It is not possible for us to accept this contention. There is categorical statement of informant Lalji P. W. 1 that immediately after the occurrence he had got the report scribed by Bhaiya Lal Sonkar which he had thumb marked and had taken to the Police Station where he had reached at about 3 or 3. 15 a. m. The statement of Constable Bhrigunath Saran P. W. 9 is also there that the report of the incident (Ex. Ka 1) had been presented at the Police Station at 3-15 a. m. on 6-10-1996 by Lalji P. W. 1. The distance of the Police Station from the place of occurrence was only 2 kms. 15 a. m. The statement of Constable Bhrigunath Saran P. W. 9 is also there that the report of the incident (Ex. Ka 1) had been presented at the Police Station at 3-15 a. m. on 6-10-1996 by Lalji P. W. 1. The distance of the Police Station from the place of occurrence was only 2 kms. To us, the first information report seems to be a spontaneous document and it cannot be doubted that it had actually be lodged by Lalji P. W. 1 on 6-10-1996 at 3. 15 a. . m. So far as subsequent filing in of the crime number in the inquest reports and the omission of the same from the Challans of the dead bodies is concerned, we do not think that merely on this ground the first information report should be taken as ante timed. This Court ruled in the case of Budhish Chandra v. State of U. P. 1991 Cri LJ 808 : (1991 All LJ 308) that S. 174 of the Code of Criminal Procedure under which the inquest report is prepared simply requires that the police officer in the presence of two or more respectable inhabitants of neighbourhood shall make an investigation and draw up a report of apparent cause of death. Inquest report and related papers such as Challan of dead body etc. have been prescribed for the purpose of having check on the movement and conduct of the police officials. They cannot give a handle to spoil the prosecution case, if there is some slip, negligence or omission in filling them up. We subscribe to the view taken in the said case which, in its turn, is based on the decision of the Supreme Court in the case of Podda Narayana v. State of Andhra Pradesh, 1975 Cri App R (SC) 202 : ( AIR 1975 SC 1252 ). The Apex Court held in the said case that a perusal of S. 174, Cr. P. C. indicated that the object was merely to ascertain whether a person had died under suspicious circumstances or the unnatural death and if so, what was the apparent cause of death. The proceedings under S. 174, Cr. P. C. have a very limited scope. The Apex Court held in the said case that a perusal of S. 174, Cr. P. C. indicated that the object was merely to ascertain whether a person had died under suspicious circumstances or the unnatural death and if so, what was the apparent cause of death. The proceedings under S. 174, Cr. P. C. have a very limited scope. So, in our considered view the omissions in the inquest report and Challans of the dead bodies pointed by the learned counsel for the appellants are not sufficient to return the finding that the first information report was ante-timed. The same cannot take away the overall impact of other evidence appearing on the point that the first information report was lodged by Lalji P. W. 1 on 6-10-1996 at 3-15 a. m. ( 29 ) LEARNED counsel for the appellants then levelled criticism against the testimony of Lalji P. W. 1 and Amar Singh P. W. 2. As for the former, it has been urged that he could not be a natural and probable witness of the incident inasmuch as he has his house in Sarai Nandan and he could hardly be expected to be at the scene of occurrence at the dead of night at about 2 a. m. The argument is not at all convincing. What Lalji P. W. 1 has stated is that he had a house in Sarai Nandan and another in Jivdhipur (where the incident took place ). The distance of Sarai Nandan from the place of occurrence was only 4 or 5 Bighas. Moreover, the categorical statement of this witness is that in the days of the incident he used to come to sleep in the house at Jivdhipur belonging to his deceased brother Babulal. Lalji P. W. 1 is issueless and he had adopted Naresh brother of Ramesh deceased and Suresh accused-appellant. There could be nothing unusual if he used to sleep in the house of his deceased brother Babu Lal situated between the houses of Ramesh deceased and Suresh accused-appellant. ( 30 ) IT has further to be observed that he is equally related to the accused-appellant Suresh. Really speaking, his relationship with accused-appellant Suresh as also with the deceased Ramesh was of common and of equal character, both being his nephews. He could have no grudge whatsoever against the accused-appellant Suresh to implicate him falsely in this case. ( 30 ) IT has further to be observed that he is equally related to the accused-appellant Suresh. Really speaking, his relationship with accused-appellant Suresh as also with the deceased Ramesh was of common and of equal character, both being his nephews. He could have no grudge whatsoever against the accused-appellant Suresh to implicate him falsely in this case. The defence of accused-appellant Suresh does not have the attraction of logic that Lalji P. W. 1 had a covetous eye on the property of Ramesh deceased and on his property. He having adopted Naresh could hardly be interested in grabbing the property of his nephews. ( 31 ) AS against Amar Singh P. W. 2, it has been pointed out that the Investigating Officer recorded his statement under S. 161 Cr. P. C. after four days. We do not think that on this ground his testimony can be thrown over board. The Investigating Officer Inspector Raj Narain Singh P. W. 7 was not even cross-examined on this aspect of the matter as to what was the cause for the delay in recording the statement of Amar Singh P. W. 2. It is worthwhile to state that his name does find place in the promptly lodged first information report as a witness. He carried on a shop and lived therein which was situated just across the lane of the place of occurrence and, therefore, he was also a very natural witness of the incident. He could very well hear the cries and shrieks emanating from the house of Ramesh and could reach there to watch the incident. The accused-appellants could not show any reason which could have tempted this witness to depose falsely against them. ( 32 ) A common ground advanced by the learned counsel for the appellants to criticize the testimony of Lalji P. W. 1 and Amar Singh P. W. 2 is this also that both of them stated that they had seen Suresh inflicting knife blows on Manisha and Bhim in a stabbing way. The way of stabbing has been described by them as Bhonk Bhonk Kar. A reference has been made to post-mortem reports of manisha and Bhim. It has been pointed out that Bhim sustained an incised chop wound whereas Manisha sustained two incised chop wounds and one another incised wound. The way of stabbing has been described by them as Bhonk Bhonk Kar. A reference has been made to post-mortem reports of manisha and Bhim. It has been pointed out that Bhim sustained an incised chop wound whereas Manisha sustained two incised chop wounds and one another incised wound. The point that the learned counsel for the appellants has tried to make is that none of them sustained stab wound. In our opinion, photographic picturisation of blows cannot be expected from truthful witnesses. What these two witnesses had meant to say was that knife was being wielded by Suresh accused-appellant in inflicting injuries. Even when a knife is wielded from upside downwards a common man would use the word Bhonk-Bhonk Kar Marna. Eye-witnesses cannot be flawed if the striking of knife blows is described as bhonk-Bhonk Kar Marna. What is material is that the deceased sustained sharp cutting weapon injuries as deposed by these two eye-witnesses and the Doctor conducting the post-mortem did categorically say that all the five deceased sustained injuries of sharp edged weapons such as knife and axe. As stated by Dr. S. K. Verma P. W. 6 who examined the injuries of Jitendra P. W. 3, he also sustained injuries of sharp edged weapon (injuries Nos. 1, 2 and 3 ). Of course, injury No. 4 was an abrasion which was of blunt object, but statement of Jitendra P. W. 3 is there that during the incident he had fallen down from the cot. Therefore, abrasion could have been sustained by him on such a fall from the cot. We are of the opinion that there is no contradiction whatsoever between the medical evidence and ocular testimony of the eye-witnesses. ( 33 ) ANOTHER argument for the accused-appellant is that as per the prosecution case and evidence the culprits had made an aperture in one of the outer walls of the room of Ramesh where the incident took place meaning thereby that they had forced their entry inside the room clandestinely. But the evidence of Lalji PW 1 and Amar Singh PW 2 is there that they saw the incident from the doors of the room of Ramesh which were open. But the evidence of Lalji PW 1 and Amar Singh PW 2 is there that they saw the incident from the doors of the room of Ramesh which were open. The learned counsel for the appellants has reasoned that when the culprits had entered the rom clandestinely by making aperture in one of the outer walls, they would not have opened the doors of the room to facilitate the witnessing of the incident by anyone. It has been urged that they would have kept the doors of the room closed and would have escaped after committing the crime through the aperture from which they had entered. To us, the argument appears to be fallacious. It is significant to keep in mind that a crime of very big magnitude had been committed in which five persons had been murdered and the sixth one had been injured. The accused-appellants would have known that the raising of hue and cry by the victims could attract the neighbours and persons nearby. Had they kept the doors of the room closed, the witnesses and the persons assembling outside could close the doors from outside and could also block the exit through aperture. Therefore, they had to take precaution for their safe passage after committing the crime through alternative exits. Thus, it was quite natural that the doors of the room of the scene of occurrence had been opened by the accused-appellants after gaining entrance. The eye witnesses, namely, Lalji PW 1 and Amar Singh PW 2 could very well witness the incident from the doors of the room of Ramesh. There is nothing unnatural about it. ( 34 ) YET another argument of the learned counsel for the appellants is that Amar Singh PW 2 stated that 400 or 500 persons had collected at the spot. His version is also to the effect that after the incident the accused-appellants had entered their house and closed the door from inside. But their house was found locked from outside when the Investigating Officer visited the spot after two hours. It has been submitted that the accused-appellants would have been lynched by the crowd that had collected at the spot, had they so entered the house after committing such a heinous crime. We are of the opinion that the argument is woven on a wrong premise. It has been submitted that the accused-appellants would have been lynched by the crowd that had collected at the spot, had they so entered the house after committing such a heinous crime. We are of the opinion that the argument is woven on a wrong premise. What Amar Singh PW 2 stated is that after the escape of the accused-appellants from the spot, 400-500 persons had collected there. Naturally, such a big crowd could not assemble in no time at the dead of night. To state this another way, such a large number of persons could not collect in fraction of a second. As the news spread of such a heinous crime having been committed, the persons started collecting. But it was after the actual incident had taken place. Having witnessed such a horrendous crime, it was natural that Lalji PW 1 and Amar Singh PW 2 were too shocked to react instantaneously. Therefore, they cannot be blamed that they did not close the door of the accused-appellants from outside after they had entered inside immediately after committing this crime. At the best, the statement of Amar Singh PW 2 indicates that immediately after committing the crime, the accused persons entered their house. But they somehow managed their escape thereafter before the collection of other persons. It is not at all relevant as to how they performed the vanishing trick and came to be arrested only later on. We, therefore, do not locate any merit in this argument either advanced by learned counsel for the appellants. ( 35 ) LEARNED counsel for the appellants then submitted that reliance cannot be placed on the alleged recovery of knife and axe allegedly got made by the accused-appellants Suresh and Ramji to the Investigating Officer under Section 27 of the Indian Evidence Act for the reason that as per the prosecution evidence, including that of the Investigating Officer Raj Narain Singh PW 7, it was a joint recovery got made by them from the house of one of them (Suresh ). Reliance in this behalf has been placed on the decision of the Supreme Court in the case of Mohd. Reliance in this behalf has been placed on the decision of the Supreme Court in the case of Mohd. Abdul Hafeez v. State of Andhra Pradesh, (1983) 1 SCC 143 : ( AIR 1983 SC 367 ) in which it was held that the recovery under Section 27 of the Indian Evidence Act involving more than one accused cannot be relied upon if the prosecution fails to particularize and connect a particular accused with the recovery of incriminating article and as to what was said by him. We agree with this contention of the learned counsel for the appellants. We would ignore the evidence relating to the alleged recovery of knife and axe (weapons of offence) got made by the accused-appellants under Section 27 of the Indian Evidence Act for the apparent defect that it was allegedly a joint recovery got made by them. Indeed, it cannot be relied upon in view of the decision of Honble Supreme Court referred to above. However, we make it clear that even ignoring the said recovery, the prosecution case is not at all adversely affected in the face of trustworthy and convincing ocular evidence against the accused-appellants Suresh and Ramji. ( 36 ) THROUGH his next argument, learned counsel for the appellants has levelled criticism against the testimony of child witness-Jitendra PW 3. According to him, his testimony has the traces of tutoring. He wanted to support this argument on two-fold grounds. First, that the accused-appellant Pavitri Devi also participated in the assault by pulling the hairs of his mother (Ganga Dei deceased) whereas the roll assigned to her by Lalji PW 1 and Amar Singh PW 2 is only that she was standing at the door of Ramesh. Second, the child witness did not answer several questions and just kept quiet. For example, he did not make any reply to the question when he was asked as to who was his elder uncle. He also kept quiet to the question as to who was his grandfather. ( 37 ) SO far as the value, which can be attached to the testimony of a child witness is concerned, no fixed rule can be prescribed. Aged witnesses can fabricate story at the moment and can answer the question after giving thought as to the effect of the answer on the case of their party. ( 37 ) SO far as the value, which can be attached to the testimony of a child witness is concerned, no fixed rule can be prescribed. Aged witnesses can fabricate story at the moment and can answer the question after giving thought as to the effect of the answer on the case of their party. But there is no such danger in the case of a child witness. The credit to be given to the testimony of the child witness can be judged from the witness and no precise rule can be framed. Two grounds advanced by the learned counsel for the appellants to discredit the testimony of child witness Jitendra PW 3 do not carry conviction at all. It has to be remembered that he is an injured of this crime and his presence at the spot cannot at all be doubted. The fact that he stated that Pavitri Devi accused also took part in assault by pulling the hairs of his mother does not run counter to the testimony of Lalji PW 1 and Amar Singh PW 2. As a matter of fact, Jitendra PW 3 was inside the room right from the beginning of the incident, whereas Lalji PW 1 and Amar Singh PW 2 had come to the scene on hearing the cries and shrieks of the victims and they had witnessed the incident from the doors of the room of Ramesh where the incident took place. When they say that they saw Pavitri Devi accused-appellant standing at the door of Ramesh, it is not contrary to what has been stated by Jitendra PW 3, because his version is also to the effect that after pulling the hairs of his mother she had gone outside. The statement of Lalji PW 1 and Amar Singh PW 2 on the one hand and Jitendra PW 3 on the other are well reconciliable with no contradiction whatsoever. Jitendra PW 3 could see her while pulling hairs of her mother and then going outside. On the other hand. Lalji PW 1 and Amar Singh PW 2 saw her standing outside the door of Ramesh. Jitendra PW 3 could see her while pulling hairs of her mother and then going outside. On the other hand. Lalji PW 1 and Amar Singh PW 2 saw her standing outside the door of Ramesh. The defence can only claim benefit in favour of accused-appellant Pavitri Devi for the reason that no overt act has been assigned to her by Lalji PW 1 and Amar Singh PW 2 and there is no corroboration of this part of the testimony of Jitendra PW 3 that she had actually participated in the assault by pulling the hairs of his mother. Although corroboration is not necessary to the testimony of a child witness, but as a rule of prudence the Court can seek corroboration. The testimony of Lalji PW 1, Amar Singh PW 2 and Jitendra PW 3 is consistent as regards the role played by the accused-appellants Suresh and Ramji and there cannot be the slightest doubt about their being the assailants and culprits of this crime of big magnitude. But as corroboration of the alleged part played by Pavitri Devi as per the testimony of child witness Jitendra PW 3 is not available, we would afford her benefit of doubt. ( 38 ) COMING to the point that child witness Jitendra PW 3 did not make reply to certain questions and just kept quiet, we do not think that it is an indicator of his being a tutored witness. Regard has to be had to his tender age when he delivered testimony before the Court. Naturally, he never saw the Court before. Non-replying of a few questions by him is simply attributable to the sense of awe. He could not be a match to the cross-examining lawyer. In fact, there was unequal duel between a refined lawyer and a boy of tender age of about seven years, as otherwise there could be no other reason for his having kept quiet on being questioned as to who was his elder uncle and as to who was his grandfather. Even a child of lesser years of age, what to say a boy of seven years as he was could have very well known the answer of these questions. On a careful judicial scrutiny of the entire testimony of the child witness Jitendra PW 3, we are not prepared to accept that he made a tutored statement. Even a child of lesser years of age, what to say a boy of seven years as he was could have very well known the answer of these questions. On a careful judicial scrutiny of the entire testimony of the child witness Jitendra PW 3, we are not prepared to accept that he made a tutored statement. We find his statement perfectly believable so far as the role of accused-appellants Suresh and Ram Ji is concerned. It may be stated at the risk of repetition that the same finds corroboration from the testimony of other eye witnesses, namely, Lal Ji PW 1 and Amar Singh PW 2, aside from being in conformity with the medical evidence. To come to the point, we would afford the benefit of doubt to the accused-appellant Pavitri Devi for the reason that regarding her role in the incident as spoken by the child witness Jitendra PW 3, there is no corroboration from other eye witnesses. ( 39 ) AT this stage, certain discussion is necessary to clear the mist as to how the testimony of the eye witnesses is capable of acceptance as against the remaining accused-appellants Suresh and Ram Ji, despite its being not worthy of acceptance as against the accused-appellant Pavitri Devi, we must say that maxim falsus in uno falsus in ommibus is not applicable in India. In each case the Court has to apprise the evidence to see as to what extent it is worthy of acceptance and merely because in one respect the Court considers it insufficient to rely on the testimony of a witness, it does not necessarily follow as a matter of law that it must be discarded in all respects. The Court has to sift the evidence with care in each case and on full consideration of all relevant material circumstances to come to a decision as to which part of the testimony of witnesses is to be accepted and which is to be rejected. In other words, the witnesses cannot be branded as liars in toto and their testimony rejected outright even if part of their statements are demonstrably incorrect or doubtful. The Court has to separate the grain of acceptable truth from the chaff of exaggerations and improbabilities which cannot be safely or prudently accepted and acted upon. In other words, the witnesses cannot be branded as liars in toto and their testimony rejected outright even if part of their statements are demonstrably incorrect or doubtful. The Court has to separate the grain of acceptable truth from the chaff of exaggerations and improbabilities which cannot be safely or prudently accepted and acted upon. The mere fact that evidence of the prosecution witnesses is not firm and safe enough to be relied upon with regard to the part assigned to one accused of the offence is no ground to reject it mechanically against other accused also. This is the gist of what their Lordships of the Apex Court laid down in the case of Bhagwan Tana Patil v. State of Maharashtra, 1974 SCC (Cri) 11 : ( AIR 1974 SC 21 ) and in the case of Bava Hajee Hamsa v. State of Kerala, 1974 SCC (Cri) 515 : ( AIR 1974 SC 902 ). In the instant case the fact that the testimony of prosecution witnesses is not acceptable against the accused-appellant Pavitri Devi does not mean that they are lying. In fact, the situation is that having regard to the totality of circumstances and the non-corroboration of the alleged role played by her as per the testimony of Jitendra PW 3, her complicity is found to be of doubtful nature. We are, therefore, not accepting the prosecution evidence against her. Indeed, there is difference between falsehood and doubtful. As an element of doubt persists as regards her participation, the benefit of doubt is being extended to her, and not because the evidence having been found to be false against her. ( 40 ) TO pick up the thread, we agree with the learned trial Judge to the extent that the case of the prosecution as against Suresh and Ramji was proved to the hilt by convincing and trustworthy evidence of Lalji PW 1, Amar Singh PW 2 and Jitendra PW 3. The presence of these eye witnesses at the scene of occurrence was natural out of whom Jitendra PW 3 was injured also of this crime. Their evidence was consistent on all material aspects and the medical evidence corroborated the same. Both of them committed house trespass in the room inhabited by the victims for committing their murder. The presence of these eye witnesses at the scene of occurrence was natural out of whom Jitendra PW 3 was injured also of this crime. Their evidence was consistent on all material aspects and the medical evidence corroborated the same. Both of them committed house trespass in the room inhabited by the victims for committing their murder. Five of them were actualy brutally murdered and the sixth one, namely, Jitendra PW 3 received injuries of sharp edged weapons. The accused-appellants wielded knife and Ramji made use of an axe in inflicting injuries on the victims. The injuries on Jitendra PW 3 were inflicted in an attempt to murder him. It was just by chance that he happened to survive while lives of the other five victims were mercilessly cut short by the accused-appellants Suresh and Ramji. All the five deceased including the injured sustained injuries of sharp edged weapons wielded by the accused-appellants Suresh and Ramji. It would be recalled that the accused-appellant Suresh wielded knife and the other accused-appellant Ramji wielded an axe. Thus, the actual participation of each of them in this ghastly crime of murder of five persons and attempt to murder of the sixth one is proved to the hilt. Their conviction under Section 302, I. P. C. and 307, I. P. C. was perfectly justified having regard to their actual and equal participation in this crime after committing house trespass. So, in other words, and in proper sequence, the accused-appellants Suresh and Ramji committed offences punishable under Sections 449, I. P. C. , 302, I. P. C. and 307, I. P. C. ( 41 ) NOW we address ourselves to the aspect of punishment. The learned Sessions Judge has awarded death sentence to them for the offence of Section 302, I. P. C. for having committed five murders. As death sentence has been passed against both of them, other sentences awarded to them for the offences under Section 449, I. P. C. and, 307 I. P. C. are of theoretical and academic importance only. Seven years rigorous imprisonment has been awarded to each of them, under Section 307, I. P. C. and five years rigorous imprisonment under Section 449, I. P. C. ( 42 ) TO be or not to be is a highly vexed question. Seven years rigorous imprisonment has been awarded to each of them, under Section 307, I. P. C. and five years rigorous imprisonment under Section 449, I. P. C. ( 42 ) TO be or not to be is a highly vexed question. Throughout the globe, brilliant brains including legal luminaries and philosophers have scratched their heads, debating whether death sentence should be retained as punishment for some of the most heinous crimes. Lord Denning once said that punishment of death should reflect adequately the revulsion felt for the gravest of crimes by the great majority of citizens. In our country, for the offence of murder death sentence has been retained for rarest of rare cases. As judges we are not concerned with the morals or ethics of this punishment. It is our duty to administer the law as it is. We find the present case falling in the category of rarest of rare cases in which the extreme penalty of death is called for to meet the ends of justice. We would say a few words in justification of our approach. The accused-appellants Suresh and Ramji committed this most heinous crime in a diabolical manner. As many as five persons were murdered who were the own close relatives of one of them Suresh being his brother, brothers wife, two daughters and one son of his brother. It was such a ghastly crime that amongst the victims were three innocent children aged between one and nine years. It would be recalled that the deceased Anisha was only one year of age whereas the boy Bhim was only aged about three years and the third child Manisha was aged nine years. These budding flowers were exterminated in a merciless manner before they could bloom. In fact, all the five victims were brutally done to death by sharp edged weapons wielded by Suresh and his brother-in-law Ramji. The offence was such as to shock the conscience of the people in general, generating a sense of abhorrence in the society. Their purpose was to eliminate the entire family of Ramesh and they succeeded in murdering five members of the family of six. It was just by providence that Jitendra PW 3 could survive despite the murderous assault. The offence was committed by them with planning. Their purpose was to eliminate the entire family of Ramesh and they succeeded in murdering five members of the family of six. It was just by providence that Jitendra PW 3 could survive despite the murderous assault. The offence was committed by them with planning. Having regard to the totality of the facts and circumstances of the case and the magnitude of the horrendous crime committed by the accused-appellants Suresh and Ramji, the extreme penalty of death is called for to be awarded to them for the offence under Section 302, I. P. C. The sentences of seven years rigorous imprisonment and five years rigorous imprisonment passed against each of them under Section 307, I. P. C. and 449, I. P. C. respectively also do not call for any interference, they being only of theoretical importance. We record our final conclusion hereinbelow. ( 43 ) IN view of the foregoing discussion, we allow Criminal Appeal No. 18 of 1998 filed by Smt. Pavitri Devi and set aside her conviction and sentences passed against her by the impugned judgment and order. She is acquitted of the offences punishable under Section 302 I. P. C. read with Section 34 IPC and Section 307 I. P. C. read with Section 34 I. P. C. She is on bail. She need not surrender. Her personal bond and bail bonds are cancelled and sureties discharged. ( 44 ) WE hereby dismiss Criminal Appeal No. 2 (sic) of 1998 filed by accused-appellants Suresh and Ramji against their conviction and sentences under Section 302, I. P. C. , 307, I. P. C. and 449 I. P. C. by the impugned judgment and order. We confirm the death sentence passed against each of them under Section 302, I. P. C. and also the sentences of seven years rigorous imprisonment under Section 307, I. P. C. and five years rigorous imprisonment under Section 449, I. P. C. , substantive sentences running concurrently. As a resultant effect, each of the accused-appellants Suresh and Ramji shall be hanged by neck till dead. They are already in jail. ( 45 ) REFERENCE No. 1 of 1998 made by the learned Sessions Judge, Varanasi stands decided accordingly. ( 46 ) LET a copy of this judgment along with the record of the case be immediately sent to the Court below for needful compliance under intimation to this Court within two months positively. They are already in jail. ( 45 ) REFERENCE No. 1 of 1998 made by the learned Sessions Judge, Varanasi stands decided accordingly. ( 46 ) LET a copy of this judgment along with the record of the case be immediately sent to the Court below for needful compliance under intimation to this Court within two months positively. Order accordingly. .