G. P. MATHUR, J. These appeals have been preferred against the judgment and order dated 3-6-2000 of Special Additional Sessions Judge, Shahjahanpur in S. T. No. 379 of 1992. He found the appellants Kaptan and Lal Man guilty under Sections 148, 323/149, 452 and 302/149 IPC and sentenced them to three years R. I. , one year R. I. , and seven years R. I. , respectively, under the first three counts. The appellant Kaptan was sentenced to death under Sections 302/149 IPC while the appellant Lal Man was sentenced to imprisonment for life under the aforesaid charge. Chandra Sen who was also tried in the same sessions trial was however, acquitted of all the charges. The appellant Kaptan was also tried under Section 25 of the Arms Act in S. T. No. 105 of 1993 but was acquitted of the said charge by the same judgment and order. The appellant Kaptan has preferred Criminal Appeal No. 1407 of 2000 while appellant Lal Man has preferred Criminal Appeal No. 1450 of 2000 challenging their conviction and the sentences imposed upon them. The learned Sessions Judge has also made a reference for confirmation of sentence of death imposed upon Kaptan. Since both the appeals arise out of the same sessions trial, they are being decided by a common order. 2. The case of the prosecution, as stated in the FIR and as unfolded by the evidence, in brief, is that the appellant Kaptan is son of Bhagge, and is resident of village Anta, P. S. Pachdeora, District Hardoi, while the appellant Lal Man is son of Jodha, and is resident of village Albela, P. S. Jalalabad, District Shahjahanpur. The third accused Chandra Sen, who has been acquitted by the trial Court, is resident of village Guar, P. S. Tilhar, District Shahjehanpur. Three persons, namely, Rati Ram, Lal Man and Lal Sahai, all sons of Chiranjee Lal, residents of village Sahona, P. S. Jalalabad, District Shahjahanpur, lost life in the incident and they were all real brothers of the first informant, Ram Bilas. It may be clarified here that Criminal Appeal No. 1450 of 2000 has been preferred by Lal Man, son of Jodha Lal and one of the deceased is also Lal Man who was son of Chiranjee Lal of village Sahona, P. S. Jalalabad, District Shahjahanpur. It may be clarified here that Criminal Appeal No. 1450 of 2000 has been preferred by Lal Man, son of Jodha Lal and one of the deceased is also Lal Man who was son of Chiranjee Lal of village Sahona, P. S. Jalalabad, District Shahjahanpur. Rama, sister of Kaptan accused, was married with the Lal Sahai (deceased) about two years before the incident. She died about a year after her marriage and Kaptan and his family members held out that Rama had been killed by Lal Sahai and others. A panchayat was held in this regard and in accordance with the decision taken therein, all the articles given by way of gift in marriage were returned to Bhagge, father of Rama and an amount of Rs. 10,000/- was also paid. At that time Kaptan accused is alleged to have given a threat that as the articles belonged to them they were taking them away, but he will certainly take revenge of the murder of his sister. The case of the prosecution further is that another sister of Kaptan is married to Brij Pal, resident of village Albela which is close to village Sahona and the appellant Lal Man is elder brother of Brij Lal aforesaid. The third accused, namely, Chandra Sen, is a friend of Lal Man accused and is said to be a notorious criminal. Nanhe @ Nanhakoo and Babu, who are also alleged to have participated in the incident in question, are said to be brothers- in-law (wifes brothers of Kaptan ). The incident took place in the mid-night of 21/22-1-1992 when the complainant Ram Bilas (P. W. 1) was sleeping along with his wife in Khaprail inside his house while his mother Smt. Raj Kumari (P. W. 3) was sleeping in a shed in the house and an improvised lamp by putting kerosene and a wick in a glass-bottle was burning there. The three deceased, namely, Rati Ram, Lal Man and Lal Sahai were sleeping outside in the chaupal and their father was sleeping in the shop which is outside the house. Some others of the village, namely, Heera, Jawahar, Jeevan and Om Prakash were also sleeping in the chaupal where two similar improvised kerosene lamps were burning. At about mid- night Nanhe and Babu (brothers-in-law of Kaptan accused) and three-four others scaled the southern wall and came inside the courtyard of the house. Some others of the village, namely, Heera, Jawahar, Jeevan and Om Prakash were also sleeping in the chaupal where two similar improvised kerosene lamps were burning. At about mid- night Nanhe and Babu (brothers-in-law of Kaptan accused) and three-four others scaled the southern wall and came inside the courtyard of the house. They caught hold of the complainant Ram Bilas, assaulted him with lathis and enquired about Lal Sahai. When he refused to divulge anything, they opened the door and brought him outside where Kaptan armed with a double-barrel gun and Lal Man and Chandra Sen armed with single barrel guns were standing. On account of the cries raised by Ram Bilas, his brother woke up and said who was there. After seeing Rati Ram, Kaptan said that it was he who had got his sister killed and he would not leave him and, thereafter, he fired twice upon him (Rati Ram ). After pointing towards Lal Man, Kaptan said that he had given him many abuses and, thereafter, Lal Man and Chandra Sen accused fired upon him. Lal Sahai tried to conceal himself but Kaptan said that he is the real killer of his sister and, thereafter, fired upon him. Meanwhile, some persons of the village raised alarm and also fired from their guns and then the accused ran away. The accused were identified in moonlight and also the light of the improvised kerosene lamps. Out of the unknown miscreants one was carrying a rifle and another was carrying a pistol. 3. P. W. 1, Ram Bilas, then went to village Guraiya along with some other co-villagers where he dictated a FIR of the occurrence to Rajesh, son of Ram Murti Singh. He then went on a tonga to P. S. Jalalabad which is at a distance of 5 kms. from the village and lodged the FIR at 2 a. m. on 22-1-1992, P. W. 6, Mahkar Singh, Clerk-constable of P. S. Jalalabad then prepared chick FIR on the basis of the report lodged by Ram Bilas. He also registered a case at 2 a. m. in the General Diary. The complainant Ram Bilas was subsequently sent to PHC, Jalalabad along with a constable where he was medically examined by P. W. 9. Dr. Rajendra Prasad, at 6. 15 a. m. on 22-1-1992. He also registered a case at 2 a. m. in the General Diary. The complainant Ram Bilas was subsequently sent to PHC, Jalalabad along with a constable where he was medically examined by P. W. 9. Dr. Rajendra Prasad, at 6. 15 a. m. on 22-1-1992. P. W. 8 Ranjit Singh Bora, Inspector in-charge of P. S. Jalalabad, was present and he immediately commenced investigation of the case. He proceeded for the spot on a jeep along with P. W. 5 Prem Pal Singh, ASI, P. W. 7 Sahdeo Singh, SI and some other police personnel. He recorded the statements of P. W. 2 Smt. Bhagwati, P. W. 3 Smt. Raj Kumari, Heera Lal, Jawahar and others on the spot. He prepared site-plan with the assistance of complainant Ram Bilas (P. W. 1) and other witnesses. Under his guidance and direction P. W. 7, Sahdeo Singh, ASI, prepared the inquest reports of the three deceased, the bodies were sealed and were sent for post-mortem examination. He also recovered some empty cartridges, tiklis and pellets from the chaupal and also from the chabutara. Large quantity of blood had fallen where the bodies of the deceased were lying and he collected plain and blood-stained earth from there and prepared their recovery memos. He also examined the improvised kerosene lamps and gave them in the custody of Ram Bilas. He returned to the police station at 8. 05 p. m. in the night. He again left the police station at 9. 15 p. m. along with Prem Pal Singh, ASI, and some other constables to arrest Krishan Pal Singh and Brij Pal Singh who were involved in another murder case. On the way he saw a person coming in suspicious circumstances who was also carrying a double-barrel gun. Seeing the police party, he tried to run away but was apprehended and on interrogation he disclosed his name as Kaptan. He further informed the police party that the gun belonged to Mithu Lal, resident of Lokaha, P. S. Pali, District Hardoi, who was father of his brother-in-law Rakesh. The gun was taken in the custody and its recovery memo was prepared. The investigation was thereafter taken over by Sri O. P. Sharma, who sent the gun and empty cartridges to ballistic expert. After completion of the investigation charge-sheet was submitted against the accused on 2-4-1992. 4. The gun was taken in the custody and its recovery memo was prepared. The investigation was thereafter taken over by Sri O. P. Sharma, who sent the gun and empty cartridges to ballistic expert. After completion of the investigation charge-sheet was submitted against the accused on 2-4-1992. 4. The CJM, Shahjahanpur, took cognizance of the offence and committed the case to the Court of Sessions. The learned Additional Sessions Judge framed charges under Sections 148, 323/149, 302/149 and 452 IPC against the appellants Kaptan, Lal Man and Chandra Sen accused on 6-11-1997. Nanhe @ Nanhakoo accused could not be arrested as he absconded and, therefore, he was not put up for trial. Babu accused was killed and, as such, he also did not face trial. Kaptan accused was also charged under Section 25 of the Arms Act. The charges were read over and explained to the accused who pleaded not guilty and claimed to be tried. The prosecution in support of its case examined 10 witnesses including three eye-witnesses and filed some documentary evidence. The accused in their statements under Section 313 Cr. P. C. denied the prosecution case and stated that they had been falsely implicated on account of enmity. The also examined two witnesses in their defence. The learned Sessions Judge believed the prosecution case in so far as Kaptan and Lal Man accused are concerned and convicted and sentenced them as mentioned earlier but acquitted Chandra Sen accused. 5. We have heard Sri V. C. Tiwari, learned Counsel for the appellants, Sri R. K. Singh, learned AGA for the State at considerable length and have gone through the entire record. 6. Before considering the ocular testimony, it will be useful to refer to the medical evidence on record. P. W. 9 Dr. Rajendra Prasad was Senior Medical Officer at PHC, Jalalabad. He examined P. W. 1 Ram Bilas at 6. 15 a. m. on 22-1-1992 who was brought by constable Radha Prasad Gaur and following injuries were found on his person:- (1) Lacerated wound on face, just below nose, size 1-1/2 cms. x 1/2 cms. , muscle deep, with fresh bleeding present, underlying mucosa of lip is red. (2) Contused swelling on back of right hand, size 4 x 3 cms. , red in colour, 3 cms. below wrist joint. (3) Contusion red in colour, on back of right forearm, size 6 x 2 cms. x 1/2 cms. , muscle deep, with fresh bleeding present, underlying mucosa of lip is red. (2) Contused swelling on back of right hand, size 4 x 3 cms. , red in colour, 3 cms. below wrist joint. (3) Contusion red in colour, on back of right forearm, size 6 x 2 cms. , situated 5 cms. below elbow joint. (4) Contusion on right upper arm, just above elbow joint size 4 x 2 cms. , red in colour. (5) Contusion, red in colour, size 6 x 2 cms. , on right upper arm, 8 cms below shoulder joint. (6) Contusion on back of middle of left forearm, size 5 x 2 cms. , red in colour. (7) Contusion on lateral part of middle of left upper arm, size 4 x 2 cms. , red in colour. (8) Contusion on back of chest, left side, size 12 x 2 cms. x 11 x 2 cms. , red in colour, just parallel to each other. (9) Abrasion, size 2 x 1 cms. , aspect of left leg, 10 cms. above ankle joint, with fresh blood clots. The injury report is Ex. Ka.-34 on the record. In the opinion of the doctor, the injuries were caused by hard and blunt object and their duration was fresh. In the opinion of the doctor the injuries could have been caused at about 12 in the night of 21/22-1-1992. 7. P. W. 4 Dr. R. C. Asthana was posted as Senior Pathologist in the District Hospital, Shahjahanpur and he conducted post-mortem examination on the body of deceased Lal Sahai at 1. 30 p. m. on 23-1-1992 and following ante-mortem injuries were found on his person:- (1) Gun-shot wound of entry 5. 0 cm. x 5. 0 cm. x cavity deep on the side neck just above the supra clavicular region. Direction from upward to downward and backward margins inverted. No blackening, tattooing charring seen. (2) Abrasion 1. 0 cm. x 0. 5 cm on the front of the leg. The post-mortem report is Ext. Ka. 2 on the record. The internal examination showed that fourth and fifth ribs on the back were fractured, pleura, right lung and large vessels were lacerated. Wadding pieces and sixty-four small pellets were recovered from inside the body. In the opinion of the doctor, death had occurred due to shock and haemorrhage as a result of ante-mortem injuries. 8. Ka. 2 on the record. The internal examination showed that fourth and fifth ribs on the back were fractured, pleura, right lung and large vessels were lacerated. Wadding pieces and sixty-four small pellets were recovered from inside the body. In the opinion of the doctor, death had occurred due to shock and haemorrhage as a result of ante-mortem injuries. 8. P. W. 4 conducted post-mortem examination on the body of deceased Lal Man at 2 p. m. on 23-1-1992 and found the following ante-mortem injuries on the same:- (1) Abrasion 5 cm. x 2 cm. on the front of side chin. (2) Abrasion 3 cm x 2 cm on the front of neck 2 cm. above the Clavicular joint. (3) Gun-shot wound of entry 3 cm. x 2. 5 cm. x cavity deep on the front of the upper part chest front below the sternal notch. Blackening tattooing and charring seen around the wound. (4) Multiple gunshot wound of entries in an area of 17 cm x 8 cm x muscle & cavity deep extending from lower part of neck to upper part front of chest, just around the Injury No. 3. The blackening, tattooing, charring seen. In Injury No. 3 and 4 margins of the wound are inverted. (5) Gun-shot wound of entry 3 cm. x 2. 5 x through & through on the inner aspect Face. Blackening, tattooing present. Margins inverted. (6) Gun-shot wound of exists 4 cm. x 3 cm. connected with Injury No. 5 Margins everted on the inner aspect Knee 2 cm. away & away from Injury No. 5. The post-mortem report is Ext. Ka.-3 on the record. The internal examination showed that 2nd and 3rd ribs and sternum were fractured and there was laceration of pleura, left lung, pericardium and heart. One wadding piece and 50 metallic pellets were recovered from inside the body. In the opinion of the doctor, death had occurred due to shock and haemorrhage as a result of ante-mortem fire-arm injuries. 9. The same doctor conducted the post-mortem examination on the body of deceased Rati Ram at 3. 10 p. m. on 22-1-1992 and found the following ante-mortem injuries on the same:- (1) Gun-shot wound of entry 2. 5 cm. x 2. 00 cm. x through on the (L) side face extending from the upper lip to (L) side Jaw and Chin. Bleeding, tattooing, charring present. Margins inverted. 10 p. m. on 22-1-1992 and found the following ante-mortem injuries on the same:- (1) Gun-shot wound of entry 2. 5 cm. x 2. 00 cm. x through on the (L) side face extending from the upper lip to (L) side Jaw and Chin. Bleeding, tattooing, charring present. Margins inverted. (2) G. W. of exits 8 cm. x 5 cm. (sic) connected with Injury No. 1 on the upper part neck & chin. Under the injury Mandible and Maxilla fractured. (3) Gun-shot wound of entry 5 cm. x 4 cm x muscle deep on the front of the neck just above the sternal notch, margins inverted. Tattooing present. (4) Multiple gun-shot wound of entry in an area of 10 cm. x 8 cm. Cavity deep on the lower part of neck & Upper Part chest. Margins inverted. Size varying from 0. 25 cm x 0. 25 cm to 0. 3 cm x 0. 3 cm. x cavity & muscle deep. (5) G. S. wound of entry 2. 5 cm. x 2. 00 cm. x through & through on the back of root of Right Thumb. Blackening, tattooing present. Margins inverted. (6) Gun-shot wound of exits 3 cm. x 2. 5 cm. x connected to injury No. 5. Thumb separated from its root. Margins everted. The post-mortem report is Ext. Ka-4 on the record. The internal examination showed that pleura, right lung and large vessels were lacerated. One wadding piece and 17 pellets were recovered from inside the body. In the opinion of the doctor, the cause of death was shock and haemorrhage as a result of ante- mortem fire-arm injuries. The stomach of all the three deceased contained pasty food material, the small intestine contained digested food material and large intestine contained faecal matter with gases. In his statement, the doctor stated that the death of all the three deceased could have been caused in the mid-night of 21/22-1-1992. 10. P. W. 1 Ram Bilas is the real brother of the three deceased and is the first informant of the case. In his statement in Court, while giving the details of the firing done by the accused upon the three deceased, he did not mention the name of Chandra Sen accused and assigned the role of shooting to only two accused, namely, Kaptan and Lal Man. In his statement in Court, while giving the details of the firing done by the accused upon the three deceased, he did not mention the name of Chandra Sen accused and assigned the role of shooting to only two accused, namely, Kaptan and Lal Man. He also stated that he was assaulted by the lathis due to which he sustained injuries and was medically examined at PHC, Jalalabad. On the application of the State Counsel, the witness was declared hostile and he was permitted to be cross-examined by him wherein he stated that he had not seen Chandra Sen accused. Thereafter, he was cross-examined by the Counsel of the accused at considerable length. P. W. 2 Smt. Bhagwati is wife of P. W. 1 Ram Bilas. She stated about the motive part of the prosecution case and stated that though all the gifts given in the marriage had been returned and an additional amount of Rs. 10,000/- had been paid after the death of wife of Lal Sahai, Kaptan accused had held out a threat that he would take revenge of the death of his sister. Regarding the main occurrence she stated that in the mid-night Babu and Nanhe along with three-four others scaled the wall and came inside the courtyard. After catching hold of Ram Bilas and assaulting him with lathis they made enquiries about his brothers and took him outside. She and her mother-in-law followed them and begged the accused to release him. On the cries raised by Ram Bilas, Rati Ram. Lal Man and Lal Sahai woke up and they asked who was there and then the accused Kaptan and Lal Man fired upon them. She stated that she witnessed the entire occurrence in the light of the improvised kerosene lamps and moonlight. She did not name Chandra Sen accused in her statement and on the application of the State Counsel she was permitted to be cross-examined by him. She denied to have given any statement to the investigating officer to the effect that Chandra Sen was present amongst the accused. Exactly similar statement has been given by P. W. 3 Smt. Raj Kumari who is mother of P. W. 1 Ram Bilas. She also did not mention the name of Chandra Sen accused and was permitted to be cross-examined by the State Counsel on this point. Exactly similar statement has been given by P. W. 3 Smt. Raj Kumari who is mother of P. W. 1 Ram Bilas. She also did not mention the name of Chandra Sen accused and was permitted to be cross-examined by the State Counsel on this point. Both these witnesses were subjected to lengthy cross-examination by the Counsel for the accused. 11. P. W. 6 Mahkar Singh, was clerk-constable at P. S. Jalalabad. He stated that Ram Bilas lodged a written report of the occurrence on the basis of which he prepared chick FIR and registered the case in the General Diary at 2 a. m. on 22-1-1992. He proved the chick FIR, Ext. Ka-5 and copy of the G. D. Ext. Ka-7. He further stated that he had registered a case against Kaptan accused under Section 25 of the Arms Act at 23. 50 hours on 22-1-1992. P. W. 5 Prem Pal Singh, was ASI at PS Jalalabad on 22-1-1992. He proved the hand-writing of Mahkar Singh, clerk-constable on the chick FIR and also the copy of the GD regarding registration of the case at 2 a. m. on 22-1-1992. He also accompanied P. W. 8 Ranjit Singh Bora and other police personnel when they went to the spot on jeep. P. W. 7 Sahdeo Singh was posted as SI at P. S. Jalalabad and he went along with P. W. 8 Ranjit Singh Bora to the spot. He prepared the necessary documents for conducting post-mortem examination on the bodies of the three deceased. He also prepared the challan-lash and photo-lash. On the direction of P. W. 8 he wrote the inquest reports of the three deceased. He sealed the dead-bodies and handed them over to the constables for being taken to the head-quarter for the purpose of post-mortem examination. P. W. 8. Ranjit Singh Bora, Inspector of P. S. Jalalabad, conducted investigation of the case and in his statement he gave details of the various steps taken by him in that connection. Mithu Lal, SI, was the investigating officer of the case which was registered against Kaptan accused under Section 25 of the Arms Act but he expired before his statement could be recorded. Mithu Lal, SI, was the investigating officer of the case which was registered against Kaptan accused under Section 25 of the Arms Act but he expired before his statement could be recorded. P. W. 10 Rameshwar Dayal Misra, constable of P. S. Jalalabad proved the hand-writing of Mithu Lal aforesaid on the various documents which were prepared by him in connection with the investigation of the case under Section 25 of the Arms Act against Kaptan accused. 12. We have given above, in brief, the evidence which has been adduced by the prosecution. 13. The first question which requires consideration is whether the accused had any motive to commit the crime thought in a case based on direct eye-witness account proof of motive is not very important. It is mentioned in the FIR and has also come in the testimony of the three eye-witnesses that Smt. Rama sister of Kaptan accused was married to Lal Sahai deceased about two years before the occurrence and she died about a year back. Her father, brother and other family members alleged that she had been killed and the villagers thereafter held a panchayat. In accordance with the decision taken therein the entire articles given by way of gift in the marriage were returned and an additional amount of Rs. 10,000/- was also paid to the her father Bhagge. It has come in the testimony of P. W. 1, that an effort was made by her family members to lodge an FIR regarding he death of Smt. Rama but the same was not recorded at the police station. At that time Kaptan had held out a threat that the returned articles belonged to him and, as such, he was taking them away but he would certainly take revenge of the murder of his sister, Smt. Rama. P. W. 2 Smt. Bhagwati, has admitted in her cross-examination that information regarding the death of Smt. Rama was not sent to her parents and on the same day her cremation was done. She further stated that she did not remember whether parents of Smt. Rama had participated in the cremation. There is consistent evidence that a panchayat was held regarding return of articles and this shows that some dispute had been raised from the side of parents and other family members of Smt. Rama. She further stated that she did not remember whether parents of Smt. Rama had participated in the cremation. There is consistent evidence that a panchayat was held regarding return of articles and this shows that some dispute had been raised from the side of parents and other family members of Smt. Rama. The suggestion given to P. W. 1 and P. W. 3 towards the end of the cross- examination is that Kaptan and his family members wanted return of their articles given at the time of marriage and as the same was not done there was enmity between them. Thus, the fact of enmity between the family members of Kaptan, on the one hand and the complainant, and his brothers, on the other, is admitted to the accused also. The witnesses consistently deposed about the threat given by Kaptan that he would take revenge of murder of his sister. Lal Man accused is elder brother of Brij Pal who is the husband of another sister of Kaptan. P. W. 1 has deposed that he is very close and friendly with Kaptan accused. On account of his relationship he could join with Kaptan in committing the crime. Thus, the motive alleged by the prosecution for the commission of the crime is fully established. 14. There is no dispute that all the three deceased were killed in the chaupal of their house. This is established from the testimony of the eye-witnesses and also from the fact that all the three dead bodies were found in the chaupal by the investigating officer, P. W. 8, Ranjit Singh Bora and also Sahdeo Singh, SI, P. W. 7, who wrote the inquest reports and prepared other documents in connection with post- mortem examination. Considerable amount of blood was found at several places in the Chaupal, which again fixes the place of commission of the crime. The eye-witnesses which include two ladies are residents of the same house and their presence in their own house at mid-night in peak winter season cannot be doubted in any manner. Therefore, they are the most natural witnesses of the commission of the crime. The evidence shows that Nanhe @ Nanhakoo, Babu and three or four other scaled the wall of the courtyard and caught hold of P. W. 1 Ram Bilas and gave him beating by lathis. Therefore, they are the most natural witnesses of the commission of the crime. The evidence shows that Nanhe @ Nanhakoo, Babu and three or four other scaled the wall of the courtyard and caught hold of P. W. 1 Ram Bilas and gave him beating by lathis. They brought him outside making enquiry regarding his brothers and after hearing his cries the deceased who were sleeping in the chaupal woke up and enquired what was the matter. The two ladies of the house, namely, P. W. 2 Smt. Bhagwati and P. W. 3, Smt. Raj Kumari also followed them begging for release of Ram Bilas. The eye-witnesses, thus, came out and stood near the chaupal and, therefore, got full opportunity to see the commission of the crime. They have stated in their testimony that Kaptan was armed with a double-barrel gun and Lal Man was armed with a single-barrel gun, with which they fired upon the three deceased. In fact, the presence of the eye-witnesses in the house has not at all been challenged in the cross-examination and the only suggestion given was that a dacoity had been committed in which three deceased had been killed. It is noteworthy that P. W. 1 Ram Bilas also received injuries in the incident and he was promptly examined at 6. 15 a. m. in the following morning at PHC, Jalalabad. This lends further assurance regarding his presence on the scene. Regarding the source of light it mentioned in the FIR and has also come in the testimony of the eye-witnesses that an improvised kerosene lamp was burning inside the khaprail where P. W. 1 Ram Bilas was sleeping and two improvised kerosene lamps were burning in the Chaupal. It was also moonlit night. The kerosene lamps were found in the khaprail and also in the chaupal by investigating officer. After inspecting the lamps they were given in the supurdgi of Ram Bilas and its supurdginama, Ext. Ka. 33, was prepared. Kaptan being the real brother of Smt. Rama, who was married to Lal Sahai deceased, was very well known to the eye- witnesses. Lal Man accused is resident of village Albela which is very close to the village of the complainant and he used to occasionally come to the house of the complainant and, thus, he was very well known. Kaptan being the real brother of Smt. Rama, who was married to Lal Sahai deceased, was very well known to the eye- witnesses. Lal Man accused is resident of village Albela which is very close to the village of the complainant and he used to occasionally come to the house of the complainant and, thus, he was very well known. The light emitted by the kerosene lamps and also the moonlight was sufficient enough in which the two appellants, who were known persons, could be easily recognised. Thus, it is fully established beyond any shadow of doubt that all the three eye-witnesses were present on the spot who had ample opportunity to see the commission of the crime and to identify the assailants. 15. According to the case of the prosecution, the initial assault was made upon P. W. 1 Ram Bilas by lathis when he was dragged from the khaprail in the courtyard to outside the house near the chaupal. He was medically examined by P. W. 9, Dr. Rajendra Prasad, Senior Medical Officer at 6. 15 a. m. on 22-1- 1992 at PHC, Jalalabad. The doctor found one lacerated wound, six contusions, one contused swelling and one abrasion on his person. The lacerated wound was on the face just below the nose and fresh bleeding was present. The doctor stated that the injuries had been caused by some blunt object like lathi or danda and could have been caused at about 12 in the night. Thus, the medical examination report of P. W. 1 Ram Bilas, who had been examined very promptly by an experienced doctor of a Government hospital completely corroborates his testimony. The eye-witnesses have further stated that Kaptan and Lal Man accused fired several shots upon the deceased. It is mentioned in the FIR and has also come in the testimony of P. W. 1 Ram Bilas, P. W. 2 Smt. Bhagwati and P. W. 3 Smt. Ram Kumari that Kaptan accused fired twice upon Rati Ram and once upon Lal Sahai deceased. The witnesses have also stated that the accused fired from their guns four-five times. The post-mortem report of Lal Sahai shows that he received one gun-shot wound of entry 5 cm. x 5 cm. x cavity deep on the right side of neck and Lal Man and Rati Ram deceased received several gun-shot injuries. The witnesses have also stated that the accused fired from their guns four-five times. The post-mortem report of Lal Sahai shows that he received one gun-shot wound of entry 5 cm. x 5 cm. x cavity deep on the right side of neck and Lal Man and Rati Ram deceased received several gun-shot injuries. Except for one abrasion sustained by Lal Sahai and two abrasions sustained by Lal Man, which are very minor and insignificant in nature, all the injuries received by the deceased are by fire-arms. It is important to note that though according to the case of the prosecution Nanhe @ Nanhakoo and Babu accused are said to be armed with lathis but they are not alleged to have caused any injury to the deceased. All the three witnesses are consistent that it was Kaptan and Lal Man accused alone who caused injuries to the deceased by firing upon them by their guns. Thus, the testimony of the eye-witnesses finds complete corroboration from the medical evidence on record. 16. The FIR of the occurrence was lodged at P. S. Jalalabad at 2 a. m. and the complainant covered the distance up to the police station, which is about 5 kms. on a tonga. In the FIR complete details, namely, the names of the assailants, the weapons which they were carrying and the manner of assault was mentioned. The FIR of the incident was thus very promptly lodged where full particulars of the prosecution case were given. The promptness with which the FIR was lodged rules out any chances of deliberation or manipulation and lends further assurance to the correctness and truthfulness of the prosecution case. Thus, the evidence adduced by the prosecution fully establishes that the appellants Kaptan and Lal Man fired upon the three deceased from the guns which they were carrying and committed their murder. 17. The appellant Kaptan in his statement under Section 313 Cr. P. C. denied the prosecution case and stated that his father had asked for return of the articles given at the time of marriage of his sister. The complainant by exercising political pressure got a false case registered against him so that he may not have to return the articles. He further stated that he was arrested from his house. P. C. denied the prosecution case and stated that his father had asked for return of the articles given at the time of marriage of his sister. The complainant by exercising political pressure got a false case registered against him so that he may not have to return the articles. He further stated that he was arrested from his house. Lal Man accused also denied the prosecution case and stated that a cousin of the complainant had eloped with the wife of his elder brother due to which their relations had become strained. His relations with Sri Ram Murti who is an MLA is strained, and in this manner he was falsely implicated in the case. 18. The accused in their defences examined two witnesses. D. W. 1, Jhabboo Lal stated that he had married his daughter Ramwati with Kaptan accused in the year 1994 and she was alive and was living with him. We are unable to understand as to how the testimony of this witness helps the accused. The incident in question took place in January, 1992, in which Kaptan was named and was assigned the main role of shooting. It does not at all appeal to reason that someone would marry his daughter to a person who is the principal accused in a triple murder case and is facing prosecution for the said offence in a Court of law. 19. D. W. 2, Brij Pal, is brother of Lal Man accused, he stated that besides Lal Man he had three other brothers, out of whom two have been married in village Hasera, P. S. Tilhar and the remaining two have been married in village Inderpur, while he himself is married in village Umarpur, P. S. Tilhar. He further stated that he did not know Kaptan accused. In cross-examination he denied the suggestion that a sister of Kaptan accused was married to him, or that he was giving a false statement in order to save Kaptan as he was his brother-in-law. The testimony of this witness is only on the point of relationship and tries to show that Kaptan accused is not related to him. However, it does not at all affect the prosecution case regarding the actual participation of the accused and commission of the crime in question. The testimony of this witness is only on the point of relationship and tries to show that Kaptan accused is not related to him. However, it does not at all affect the prosecution case regarding the actual participation of the accused and commission of the crime in question. Thus, the evidence led in defence of the accused does not in any manner affect the prosecution case regarding the participation of the accused, the role played by them and the manner in which they fired upon the deceased which resulted in their death. 20. Sri V. C. Tewari, learned Senior Counsel for the appellant, has strenuously urged that all the three witnesses had been declared hostile and with the permission of the Court they had been cross- examined by the State Counsel and the result of such a course of action was that their testimony stands completely discredited and could not be relied upon in any manner to fasten the guilt upon the appellants. In order to test the argument, it is necessary to go into the question as to why the eye- witnesses were declared hostile and the State Counsel cross-examined them. The version given in the FIR was that Kaptan, Lal Man and Chandra Sen were armed with guns and three or four other unknown persons were also there who had come to the house of the complainant and had participated in the crime. In the statement in Court the three eye-witnesses completely omitted the name of Chandra Sen accused and, thus, their testimony showed that Chandra Sen was not present amongst the assailants. Except for this omission regarding the participation of Chandra Sen, they fully corroborated the prosecution case as was narrated by them in their statement under Section 161 Cr. P. C. In our opinion, there was no occasion for the State Counsel to have declared the witnesses as hostile and to have cross- examined them with the permission of the Court. We do not want to comment upon the wisdom of the State Counsel in adopting such a course of action but the fact remains that he did so. P. C. In our opinion, there was no occasion for the State Counsel to have declared the witnesses as hostile and to have cross- examined them with the permission of the Court. We do not want to comment upon the wisdom of the State Counsel in adopting such a course of action but the fact remains that he did so. What is the legal effect of cross-examination of a witness by the party calling him, in a criminal prosecution, has been examined in great detail in Sat Paul v. Delhi Administration, AIR 1976 SC 294 , and the law on the point has been stated as under:- "even in a criminal prosecution when a witness is cross-examined and contradicted with the leave of the Court by the party calling him, his evidence cannot, as a matter of law, be treated as washed off the record altogether. It is for the Judge of fact to consider in each case whether as a result of such cross- examination and contradiction, the witness stands thoroughly discredited on can still be believed in regard to a part of the testimony. If the Judge finds that in the process, the credit of the witness has not been completely shaken, he may after reading and considering the evidence of the witness, as a whole with due caution and care, accept, in the light of the other evidence on the record, that part of his testimony which he finds to be creditworthy and act upon it. If in a given case, the whole of the testimony of the witness is impugned, and in the process, the witness stands squarely and totally discredited, the Judge should, as a matter of prudence, discard his evidence. . . " 21. In Rabindra Kumar Dey v. State of Orissa, AIR 1977 SC 170 , it was held that the mere fact that the witness is declared hostile by the party calling him and allowed to be cross-examined, does not make him an unreliable witness so as to exclude his evidence from consideration altogether. The evidence remains admissible in the trial and there is no legal bar to base the conviction upon his testimony if corroborated by other reliable evidence. The matter has again been examined threadbare in Gura Singh v. State of Rajasthan, 2001 Crl. L. J. 487 (SC), where similar view has been taken. The evidence remains admissible in the trial and there is no legal bar to base the conviction upon his testimony if corroborated by other reliable evidence. The matter has again been examined threadbare in Gura Singh v. State of Rajasthan, 2001 Crl. L. J. 487 (SC), where similar view has been taken. Thus, the law is well- settled that the testimony of a witness who has been declared hostile and is cross-examined by the party calling him is fully admissible and cannot be excluded from consideration only on that ground and further that it can be relied upon like any other admissible piece of evidence. The witnesses have completely corroborated the prosecution version of the incident minus the participation of Chandra Sen accused. The reason why the witnesses omitted to mention his name and excluded his presence from the spot is not far to seek. The charge-sheet submitted by the police mentions that Chandra Sen was involved in as many as 19 criminal cases which included several cases under Sections 392 IPC, 394 IPC, 377 IPC and also a case under Section 302 IPC. He was also accused in a case under Section 2/3 of the U. P. Gangsters and Anti-social Activities (Prevention) Act. It appears that he is a notorious criminal and a big bully and, as suggested by the prosecution, the eye-witnesses omitted to mention his name on account of fear. We cannot ignore the plight of the complainant Ram Bilas who had already lost his three brothers in the incident in question. He was the sole surviving member of his family and it is quite possible that his wife and mother may have prevailed upon him not to antagonise Chandra Sen and invite his wrath by mentioning his name also as one of the assailants. As mentioned earlier, the eye- witnesses in their testimony have fully corroborated the prosecution case in all its material particulars but for the participation of Chandra Sen and, therefore, the same cannot be brushed aside and ignored only on account of the aforesaid fact. Their testimony will remain intact and can safely be relied upon so far as the remaining accused are concerned. Their testimony will remain intact and can safely be relied upon so far as the remaining accused are concerned. It is also noteworthy that Chandra Sen is not directly involved or connected with the dispute as he is not alleged to be a relation of Kaptan appellant and his absence does not in any manner weaken the prosecution case. 22. Learned Counsel has laid great stress upon an admission made by P. W. 1 Ram Bilas in his cross- examination wherein he has stated that he remained in his house till sunrise and, thereafter, went to the police station where he reached at 7-7. 30 a. m. It is urged on its basis that the FIR was in fact not lodged at 2 a. m. but was lodged at 7-7. 30 a. m. which rendered the prosecution case completely doubtful. We are unable to accept the submission made as the statement relied upon is sought to be read completely out if its context. In order to understand the real meaning of what the witness has stated in the paragraph in question, relied upon by the learned Counsel for the appellant, it is necessary to read two earlier paragraphs. There he has stated that he went to Guraiya about 20 minutes after the occurrence where he dictated the FIR. After half an hour he went to the police station in a tonga and gave the written FIR to the head constable. At that time, no tonga or buggy was plying on the road. After he had handed over the FIR the investigating officer and other police personnel came to the spot whom he accompanied. The body was not sealed in the night. Immediately thereafter he has stated that he remained in his house till sunrise and, thereafter, he went to the police station where he reached at about 7-7. 30 a. m. Thereafter, he stated that the report was written at 7. 30 a. m. and then he was medically examined. 23. The above statement has to be read and interpreted in the light of other evidence on the record. P. W. 6 Mahkar Singh, constable-clerk, P. W. 7 Sahdeo Singh, SI and P. W. 8 Ranjit Singh Bora, Inspector, have stated that FIR was lodged at 2 a. m. on 22-1-1992. 30 a. m. and then he was medically examined. 23. The above statement has to be read and interpreted in the light of other evidence on the record. P. W. 6 Mahkar Singh, constable-clerk, P. W. 7 Sahdeo Singh, SI and P. W. 8 Ranjit Singh Bora, Inspector, have stated that FIR was lodged at 2 a. m. on 22-1-1992. P. W. 7 and P. W. 8 have also deposed that they immediately proceeded for the spot on a police jeep along with several other police personnel. P. W. 5 Prem Singh, SI, has clearly stated that the complainant P. W. 1, Ram Bilas had also accompanied him and other members of the police party when they went to the spot on a jeep. This shows that after lodging of the FIR, P. W. 1 came to his own house in the village along with the investigating officer and other police personnel. The testimony of P. W. 9 Dr. Rajendra Prasad shows that he examined Ram Bilas at 6. 15 a. m. on 22-1-1992 at PHC Jalalabad. He was brought to the police station by constable Radha Prasad Gaur. This fact is also mentioned in the medical examination report of Ram Bilas which is Ext. Ka- 34 on the record. Dr. Rajendra Prasad was the Senior Medical Officer-in-charge of PHC Jalalabad which is a government hospital. There is absolutely no reason why a senior doctor of a Government hospital would wrongly mention the time of medical examination of P. W. 1. The sequence of events show that after P. W. 1 had lodged the FIR he came back to his house in the village along with the police party. Thereafter, he was sent to the PHC for medical examination of his injuries where he reached at 6. 15 a. m. He was produced and identified before the doctor by constable Radha Prasad Gaur. The testimony of P. W. 5, P. W. 6, P. W. 7 and P. W. 8 do not show that constable Radha Prasad Gaur had also gone to the spot along with the investigating officer. It appears that when P. W. 1 was taken second time for medical examination he was first taken to the police station from where constable Radha Prasad Gaur was deputed to take him for the purpose of medical examination. It appears that when P. W. 1 was taken second time for medical examination he was first taken to the police station from where constable Radha Prasad Gaur was deputed to take him for the purpose of medical examination. The medical examination report has been written by the doctor on the back of "chithhi mazrubi" which was written at the police station. P. W. 1 is not a highly educated and enlightened city-dweller and being an ordinary person living in a village, he does not seem to have a very accurate idea of time. Moreover, his statement has been recorded on 5-2- 1998 i. e. 6 years after the occurrence. If his statement is read in its context, it is not possible to draw an inference that he went for the first time to the police station after sunrise, and, thereafter, lodged the FIR of the occurrence. The contention of the learned Counsel for the appellant that the FIR has been ante-timed, therefore, has no substance. 24. Learned Counsel for the appellant has next submitted that P. W. 1 in his statement in Court has changed the manner of actual firing upon the deceased by the accused persons from his earlier version as given in the FIR and in his statement under Section 161 Cr. P. C. and that, similarly, P. W. 2 Smt. Bhagwati and P. W. 3 Smt. Raj Kumari have also changed their version. In this connection it may be stated at the very outset that an FIR can only be used for either corroborating or contradicting the made thereof and, therefore, no adverse inference can be drawn against P. W. 2 and P. W. 3 even if their statements are at slight variance with the version given in the FIR. It is true that P. W. 2 and P. W. 3 in their statements under Section 161 Cr. P. C. had stated that Chandra Sen was also present and he had fired upon the deceased and his name has been omitted by these witnesses in their statements in Court. It can at best be treated as an omission and not a contradiction. P. W. 1 Ram Bilas had no doubt assigned a specific role of shooting to Chandra Sen. The version given in the FIR is that Chandra Sen and Lal Man accused fired upon Lal Sahai deceased. It can at best be treated as an omission and not a contradiction. P. W. 1 Ram Bilas had no doubt assigned a specific role of shooting to Chandra Sen. The version given in the FIR is that Chandra Sen and Lal Man accused fired upon Lal Sahai deceased. However, in Court he stated that the accused fired upon Lal Sahai. In the statement under Section 161 Cr. P. C. the role of firing from their guns had been assigned to both the appellants, namely, Kaptan and Lal Man and this has been clearly stated in their deposition in Court. Whose shot hit which particular deceased, when all of them were sleeping together in the chaupal, is not very material in the present case. Therefore, the discrepancy, if any, between the statements, under Section 161 Cr. P. C. and the deposition in Court cannot have any such effect which may render the prosecution case doubtful. 25. It has also been submitted on behalf of the appellants that it was a winter night and there was fog and, as sush, the witnesses could not have seen or recognised the assailants. Fog is normally present in an open area and not inside a building or the chaupal where the incident took place. The argument that on account of presence of a tree near the chaupal there would have been no moonlight is equally untenable. It will depend upon the fact whether the assailants were standing in shade or at a place where the moonlight was falling. Besides the moonlight there was light of two improvised kerosene lamps inside the chaupal. There is no reason to doubt the testimony of the eye-witnesses that they had seen and recognised the assailants in the light of the kerosene lamps and also in the moonlight. Learned Counsel has also submitted that the investigation was not fair as in the inquest report initially Sections 147/148/149/302 were written but subsequently Sections 452/323 IPC were added. The inquest reports were prepared by P. W. 7 Sehdeo Singh, SI. He was not confronted with the aforesaid fact and no question was put to him in cross-examination in this regard. Similarly, P. W. 8 Ranjit Singh Bora, the investigating officer of the case, was also not confronted with the so-called subsequent addition of Sections nor was he put any question in this regard in cross-examination. He was not confronted with the aforesaid fact and no question was put to him in cross-examination in this regard. Similarly, P. W. 8 Ranjit Singh Bora, the investigating officer of the case, was also not confronted with the so-called subsequent addition of Sections nor was he put any question in this regard in cross-examination. They were the best witnesses to explain the circumstances under which these Sections were written. In view of the fact that the accused did not draw the attention of the witness who wrote the documents, regarding the aforesaid fact, it is not open to them to urge that any interpolation has been done. We have examined the inquest reports and to us there does not appear any interpolation. Even if it is accepted that Sections 323/452 were added later on, it will make no difference as basically it was an offence of murder and Sections 147/148/149/302 IPC, which were relevant, had been written. If the concerned Sub-Inspector had later on added Sections 323 and 452, which are minor offences, it would make no difference nor any adverse comment can be made upon the fairness of the investigation. The last submission of Sri V. C. Tewari is that in fact a dacoity had been committed in the house of the complainant and the police wrongly registered it as a case of murder as a police officer is put in the dock and has to explain position to the senior officer if a dacoity is committed in his area. The argument is to far-fetched to be accepted. There is absolutely no evidence on record to show that any property of the complainant had been looted. There is a shop in front of the house in which father of P. W. 1 was sleeping. Nothing was taken away from there nor the assailants made any attempt to snatch or take away any ornament of the ladies. If the property of the complainant had been looted, there is no reason why the inmates of the house would have concealed the said fact. They would not have gained anything by giving shape of a murder to an incident of dacoity. On the contrary, if really a decoity had taken place and, subsequently, looted property had been recovered, they would have failed to claim and get it back. They would not have gained anything by giving shape of a murder to an incident of dacoity. On the contrary, if really a decoity had taken place and, subsequently, looted property had been recovered, they would have failed to claim and get it back. A stray sentence in the testimony of P. W. 8 where she used the word dacoit at one place cannot be read in isolation, and does not mean that any dacoity had been committed. 26. Having given our careful consideration to the submissions made by the learned Counsel for the appellants, we are clearly of the opinion that the case of the prosecution has been established beyond any shadow of doubt and the appellants had been rightly convicted of the offences for which they were charged by the learned Sessions Judge, Kaptan appellant has been sentenced to death under Sections 302/149 IPC. In the background in which the crime was committed we do not think that it comes within the category of rarest of rare case. It appears that Kaptan was very much attached to his sister Smt. Rama who was married to Lal Sahai deceased. The evidence shows that after her death an attempt was made by her father Bhagge to lodge a FIR but the same was not recorded at the police station. A panchayat was convened in which not only the articles given by way of gift in the marriage were returned but an additional amount of Rs. 10,000/- was also paid. There was no question of payment of this money if Smt. Rama had died a natural death as was held out by the complainant and his family members. The holding of panchayat and payment of money shows that in all probability it was not a case of natural death. Kaptan was naturally burning with rage as he bona fidely believed that his sister had been killed. In his statement under Section 313 Cr. P. C. which was recorded on 23-9-1999, he has given his age as 30 years, which means he was about 22 years old at the time of commission of the crime and was not a very mature person. On consideration of the facts and circumstances enumerated above we think that the case is not such where a sentence of death should be awarded. In our opinion, the sentence of death deserves to be set aside. 27. On consideration of the facts and circumstances enumerated above we think that the case is not such where a sentence of death should be awarded. In our opinion, the sentence of death deserves to be set aside. 27. In the result, Criminal Appeal No. 1407 of 2000 filed by the appellant Kaptan is partly allowed. His conviction on all counts as recorded by the learned Sessions Judge is affirmed but the sentence of death imposed upon him for the offence under Section 302 read with Section 149 IPC is set aside and instead he is sentenced to imprisonment for life under that count. His sentences under other counts as recorded by the learned Sessions Judge are affirmed. The reference made by the learned Sessions Judge for confirmation of sentence of death is rejected. Criminal Appeal No. 1450 of 2000 filed by Lal Man is dismissed. His conviction as recorded by the learned Sessions Judge and also the sentences imposed upon him are affirmed. He is on bail. He shall surrender forthwith to undergo the sentences imposed upon him. The CJM, Shahjahanpur, shall take all steps available in law to take him into custody. After he has been arrested his sureties and bail bonds shall stand discharged. The CJM shall send a report regarding compliance of this order within three months. Appeal No. 1407/2000 allowed partly. .