JUDGMENT P.K. SINHA and B.N.P. SINGH, JJ. : - The appellants in both the appeals have been convicted under section 302 of the Indian Penal Code (hereinafter referred a as 'the Code') and have been sentenced to undergo imprisonment for life for causing murder of their own brother, Raj Kumar Yadav, his wife and Dharmendra Yadav, son of Raj Kuamr Yadav. 2. The case of the prosecution, as coming out of Exhibit-4, the fardbayan of Sunita Devi, daughter of Raj Kuamr Yadav, is that in the night intervening between the 7th and 8th of September, 1994 she (PW.4) along with her sister Meetu Kumari (P.W.3) was sleeping on the roof of their house along with her father, Raj Kuamr Yadav, mother Sarda Devi, and her younger brother Dharmendra Yadav. A lantern was buring. At about 11.00 P.M. they woke up on the barking of dogs and she saw that appellant Rajesh Yadav and Vijay Yadav, her uncles, and one unknown came upon the roof through the "Palani" of straw, uncles with guns and the unkown with a pistol. At their hulla they threatened to kill them and, in the meantime, from the ground exhortation came to kill them by firing at the temple. Seh again tried to raise hulla but appellant Fiajesh Yadav hit her with a sandal and threatened to kill her. Co-villager Musa Khan, wanted to know what was happening at which they also threatened to kill him. Thereafter appellant Rajesh Yadav fired at the temporal region of Dharmendra Yadav at which he died. Apppellant Vijay Yadav and he unknown tied her father and killed him by firing upon his temporal region with the gun and pistol. Appeliant Rajesh yadav then fired at the temporal region of Sharda Devi, kiling her also, thereafter they fired oine shot each upon the deceased persons and fled away. By that time Meetu Kumri had jumped from the roof, suffering injury in her leg. Thereafter, many villagers came and were told about the incident. 3. From the evidence on record it will appear that Chaukidar also had come to the Police Station where he gave information about the killings at 3.45 A.M. at which the Investigating Officer, Ram Chandra Ram (P.W.9) came down to the village where he recorded fardbayan (Ext.4) of the informant at 5.00 A.M. 4. 3. From the evidence on record it will appear that Chaukidar also had come to the Police Station where he gave information about the killings at 3.45 A.M. at which the Investigating Officer, Ram Chandra Ram (P.W.9) came down to the village where he recorded fardbayan (Ext.4) of the informant at 5.00 A.M. 4. The defence of the appellants, who were tried together, was heir innocence and false implication at the hands of PWs 3 and 4 who, according to the defence, had gone to their maternal uncle's place and had come back after the occurrence on receiving information whereafter they gave statement with false imputations. 5. The prosecution in all had examined nine witneses out of whom P.W.5 is Dr. Mukti Nath Singh who had performed autopsy upon the dead bodies. P.W.6, Md, Shamim was, however, tendered for cross-examination who has not said anything of consequence. Main witnesses are P.Ws 3 and 4 but before that, a glance over the evidence of other witnesses. P.W.1 is Binod Kumar Sinha who had said that on the sound of firing at about 11.00 A.M. he woke up and went near the house of Raj Kumar Yadav where he saw the three dead bodies whose inquest reports were prepared by 'Daroga' on which he and Chandrika Yadav had signed, he was also a witness of seizure of seven empty cartridges from the roof and proved his signature thereupon which seizure list is Exhibit-7. According to him, Police had come at 5.00 A.M. P.W.2, Farhad Khan, also had said about his going to the hose of Raj Kumar Yadav and his signing over Exhibit-7 as witness of seizure. P.W.7, Chandrika Yadav, has said that Raj Kumr, his wife and son were murdered but he did not know as to who had killed them. He also identified his signature upon the inquest report. P.W.8 is Naresh Yadav who also has testified as to the murders and having seen the three dead bodies but said that he did not hear anything. 6. Now coming to the evidence of P.W.3, Meetu Kumari, daughter of deceased Raj Kumar Yadav, she has said about their sleeping on the roof and waking up at the barking of the dogs when she saw three persons coming upon the roof through straw roof. She has claimed that she saw them in the light of her torch. 6. Now coming to the evidence of P.W.3, Meetu Kumari, daughter of deceased Raj Kumar Yadav, she has said about their sleeping on the roof and waking up at the barking of the dogs when she saw three persons coming upon the roof through straw roof. She has claimed that she saw them in the light of her torch. She identified her two uncles, the appellants, where as the third one was unknown. According to her Rajesh asked her father to open his lungi which he refused to do as his two daughters were there, at which Rajesh tied his hands and made him to sit whereafter he fired upon the templeof Dharmendra, killing him and thereafter Vijay Yadav and one unknown fired at the same region of Raj Kumar Yadav, also killing him whereafter Rajesh Yadav killed her mother. She admitted that on enquiry of villager, Musa Khan, as to what had happened the accused asked him to keep quit otherwise he would also be shot dead. This witness also said that while fleeing away, they had fired one shot each at the three deceased. She also supported that out of fear she had jumped from the roof receiving injury in her leg. 'Daroga' came at 5.00 A.M. and recorded fardbayan of her sister Sunita Kumari on which she also signed (Exhibit-2). She also supported that the Police Officer had seized empty cartridges. She said that the appellants from before had differences with her father relating to land, also stating that she had a third uncle who earlier was killed. In cross-examination she admitted that she had one more brother, Jitendra, who was alive. She also admitted that for the murder of her third uncle. Pappu, a case was instituted in which her father and both her brothers were accused. Ramchandra Yadav was her maternal grand father and she said that earlier mother had some quarrel with her husband and had left him and had started living with her parents. At that time both sisters were also living with her. She admitted that in the year 1990 her father had given informatory petition to the Sub-Divisional Official against her maternal grand father, maternal uncle and brother Jitendra and that about eight years back her mother had filed a case for partition of property against her father and brothers. At that time both sisters were also living with her. She admitted that in the year 1990 her father had given informatory petition to the Sub-Divisional Official against her maternal grand father, maternal uncle and brother Jitendra and that about eight years back her mother had filed a case for partition of property against her father and brothers. According to her she lived with her maternal uncle for three to four years whereafter their mother at her own volition, had come back and had started living with her husband, Raj Kuamr Yadav. In cross-examination she also said that the differences about land had ended because of partition in which her father was on one side and the three brothers were on the other. According to her, Musa Khan and Mannan Khan lived nearby. She said that all the family members in the house were sleeping on the roof on their separate beddings spread over the floor. She said that accused persons had fired from a distance of one cubit and at that time they were standing. Mother and brother were fired upon while lying down but her father was fired upon while he was sitting. She admitted that on the date of occurrence she and P.W.4 had gone to her maternal uncle's place but denied that she had stayed there or that they had come back on the next day on receinging information of the carnage. She stated that from her maternal grand-father's place they had come back at about 2.00 P.M. that very day. Her maternal grand father's house was in the town of Gaya, thirty five kilometers away from her place, she revealed. 7. P.W.4, Sunita Devi, simolarly, has fully supported her case as made out in the first information report claiming that she had identified her two uncles in the light of the lantern. She also supported that her father's hands were tied. She gave the same sequence of firings upon the deceased persons by the accused person as given in the first information report. She testified about the Police Officer recording her fardbayan. In cross-examination she has said as to how they were sleeping on the roof and said that they had taken the lantern with them which they had left buring. She also said that her father was fired upon at his temporal region from a distance of one cubit. She testified about the Police Officer recording her fardbayan. In cross-examination she has said as to how they were sleeping on the roof and said that they had taken the lantern with them which they had left buring. She also said that her father was fired upon at his temporal region from a distance of one cubit. According to her the other two deceased were also fired upon their tempoal region from a distance of one cubit. Summing up, she said that her father had suffered three shots and the rest two decceased had suffered two shots each. She said that earlier there had been some differences between her parents but since last three or four years they were maintaining good relationship. She also said that the house and lands at village Goga were not partitioned between her father and his brothers. She also said that when her father demanded his share, uncles threatened him with killing. She also denied that in the night of occurrence she, with her sister, was at her maternal uncle's place but said that they had gonethere to see her ailing grand mother but had returned back at 2.00 P.M. leaving Gaya at 1.00 P.M. 8. Coming to the medical evidence, the doctor, PW.5., so far Dharmendra Yadav was concerned, found an entry wound over the posterolateral aspect of the upper part of the neck and exit wound over the right lateral aspect of the middle of the neck which injury, caused by fire arm, had resulted in his death. The doctor also found another fire arm injury, bone deep over the left knee with fracture of left patella, lower end, the left femur and upper end of left tibia. Pellets were also recovered by the doctor. The injuries were caused by fire arm. On Raj Kuamr Yadav the witness found one lacerated wound 5” x 4 and 1/2” over the face, and front and sides of the neck. The wound was bone deep in the neck, oral cavity deep in the face and cranil cavity deep in the base of skull. The doctor found whole front and the side of the neck to be leacerated including the muscles, vessels, nerves, trachea and oesophagus. Brian and meninges were also lacerated. Lower jaw, upper jaw, base of skull, right zygomatic, temporal and occipital bones were found fractured. Pellets were also recovered form the wounds. The doctor found whole front and the side of the neck to be leacerated including the muscles, vessels, nerves, trachea and oesophagus. Brian and meninges were also lacerated. Lower jaw, upper jaw, base of skull, right zygomatic, temporal and occipital bones were found fractured. Pellets were also recovered form the wounds. The doctor also had performed autopsy on the dead body of Sharda Devi and found a tangential lacerated wound 6 x 1/2” x bone deep over the lateral aspect of the neck. Third and fourth cervical vertebrae were fractured. From the injury pellets were also recovered. He found second injury which was tangential lacerated wound 2 1/2" x 1" x bone deep over the palmer aspect of left wrist. According to the witness death was caused by the injuries suffered by those three deceased which were caused by fire arm. The time of death, as noted by the doctor, corresponds with the prosecution case. However, the doctor in none of the three post mortems found blackening, tattooing or burning marks on the injuries. The post mortem reports are Exhibits-3 to 3/2. 9. In cross-examination this witness said that firing must have been made beyond three feet of distance but he could not say as to whether the firings were made from a short range, or a long range. 10. Investigating Officer found the three dead bodies on the roof and their beddings stained with blood. On the roof he found seven empty cartridges which were seized. He prepared the inquest reports (Exhibits-6 series). On the eastern side of the dead body he also found one old lantern. This is the evidence on the record. 11. Sri Ajay Kumar Thakur, the learned counsel for the appellants, has raised a number of points, the most important being that the evidence did not show that the alleged eye-witnesses, P.W.s.3 and 4, were present at the place of occurrence. He said that other witnesses who said that they had come at the place of occurrence in the night itself, did not say that the P.Ws 3 and 4 were also present or that they had told them about the details of the incident. It was argued that P.W.S particularly had said that when he went at the place of occurrence he did not hear anything. It was argued that P.W.S particularly had said that when he went at the place of occurrence he did not hear anything. In this context learned counsel has pointed out the suggestion thrown to those two witnesses by the defence that at the time of occurrence they were at their maternal uncle's place and had come back in the next morning when they were informed about the incident whereafter they manufactured the allegations and implicated their uncles. 12. Other witnesses, as it appears from the record, were neighter asked, nor they said, about the presence of P.W.3 or P.W.4 or about their absence. Evidence of P.Ws 3 and 4 is quite categorical on the point of occurrence and on that aspect they have stood the test of cross examination. Both the witnesses have said that in the day they had gone to their maternal uncle's place but they had come back at 2.00 P.M. It has come in the evidence of P.W. 3 that the distance of maternal uncle's place was thirty five kiloimeters. The suggestion of the defence in that regard appears to be improbable because the occurrence is said to have taken place at 11.00 P.M. and according to P.W.9, the information about the occurrence was given by the Chaukidar at 3.45 P.M. whereafter he proceeded to the village Goga where he recorded the statement of P.W.4 at 5.00 P.M. This shows that quite early in the morning P.W.4 as well P.W.3 had signed over the first information report and were present in their house. This does not appear to be probable that from the countryside some one could have gone in the night itself, after obtaining a vehicle, to inform them at the mafernal uncle's place, which was thirty five kilometers away, and before the fardbayan was recorded they would have come back. Morever, the Investigating Officer also found the old lantern at the roof which finds mention in the first information report as well in the evidence of P.W.4. P.W.3 also has said about torch light and this claim has not been demolished in the cross-examination. We find the evidence of P.Ws 3 and 4 to straight forward and trustworthy, P.W.9 has also supported the claim of PWs. 3 and 4 had jumped from the roof by stating that he had found P.W.3 injured and had referred her for treatment of Dr. We find the evidence of P.Ws 3 and 4 to straight forward and trustworthy, P.W.9 has also supported the claim of PWs. 3 and 4 had jumped from the roof by stating that he had found P.W.3 injured and had referred her for treatment of Dr. R. Kumar of Magadh Medical College, though despite his efforts he could not obtain from him the injury report. 13. Learned counsel also has argued that the injuries, as found by the doctor, could not have been aused when the mother and brother of the informant were lying down. However, from the injuries on Dharmendra Yadav in the neck it will appear that the entry wound was on the upper part of the neck whereas the exit wound was on the middle of the neck, that is, travelling downwards. Upon Sharda Devi, the main injury was over lateral aspect of the neck which has fractureed the third and fourth cervical vertebrae. Such injuries do not suggest that those injuries could not have been caused while they were lying down. Specific angles of firtings were not brought out in the cross-examination to take advantage of this argument. 14. According to the eye witnesses, mother and brother of the informant were fired at once but while going away they were again fired at, one shot each. Both the mother and brother have suffered two injuries each, the first being the fatal one. It was, however, also argued by the learned counsel that though the injury upon Raj Kuamr Yadav could be said to be traversing downwards, but as per evidence of the two witnesses he was fired at thrice. First he was fired at twice allegedly in the temporal region and lastly when the accused persons were fleeing away, but as many injuries were not found upon his person. Learned counsel also pointed out that according to the evidence the deceased were fired at temporal region but the injuries would show that the fatal wounds were at the neck and though evidence suggest that they were fired at from one cubit the doctor had discarded that as there was no blackeining or tattooing marks around the wounds. Learned counsel also pointed out that according to the evidence the deceased were fired at temporal region but the injuries would show that the fatal wounds were at the neck and though evidence suggest that they were fired at from one cubit the doctor had discarded that as there was no blackeining or tattooing marks around the wounds. The learned Additional Public Prosecutor has submitted that the neck was a place not far away from temporal region and since the injuries were blood soaked the informant could have taken that to be at temporal region learned Additional Public Prosecutor also submitted that in so far as distance was concerned, both the witnesses belonged to the country-side and cannot be expected to notice the accurate distance particularly when such a ghastly occurrence was being committed in which three of their blood relatives were killed. To support this argument learned counsel has relied upon a decision of this court in the case of Sheo Charan Yadav Vs. State of Bihar; 2001 (1) P.L.J.R.591. 15. Simply because the injuries appear to have been caused below the temporal region is no ground to disbelieve the evidence of P.Ws 3 and 4 who, as already noted, appear to be trustworthy witnesses who have given a vivid account of the occurrence. 16. In so far as the first two shots fired simultaneously, as per evidence, by one of the appellants and one unknown, upon Raj kumar Yadav is concerned, the witnesses have said that both had fired at temporal region It has not come in evidence that he was not fired upon the same side of the face. The injuries on the back and above were extensive which had damaged the face including occipital and temporal region, and the neck. Pellets were also found in the wounds. Therefore, this injury could be the result of two shots. In so far as the third shot is concerned, it has not come in the evidence as to on which part of body each of the deceased were fired upon or in the case of Raj Kuamr Yadav, whether third shot had even hit him. But intotalseven shots were fired is fortified with the findings of the Investigating Officer who has said that he had seized seven empty cartridges from the roof and had prepared seizure list (Exhibit-?). But intotalseven shots were fired is fortified with the findings of the Investigating Officer who has said that he had seized seven empty cartridges from the roof and had prepared seizure list (Exhibit-?). Learned counsel for the appellants has also submitted that important witnesses such as the Chaukidar and Musa Khan have not been examined which makes the prosecution story open to doubts. It was also argued that according to the informant herself, the Chaukidar had given information about commission of cognizable offence which was noted in the Sanha diary but instead of treating that to be the first information report the statement of P.W.4 was recorded instead. 17. The Investigating Officer in his evidence has submitted that the Chaukidar had told him about the occurrence and about murder of three persons which was recorded in the Sanha diary whereafter he proceeded to the place of occurrence and after visiting the dead bodies, he recorded the fardbayan. The Chaukidar obviously was not an eye-witness. He could not have been supposed to give the details of the occurrence as to how that had taken place. Therefore, merely recording his statement in the Sanha diary and the Police Officer thereafter proceeding to the place of occurrence to see for himself as to how the occurrence had taken place and finding an eye-witness when he recorded her statement and treated that as first information report, his action is not such that would demolish the prosecution case or in any way diminish the evidentiary value of the eye-witnesses. In the last, learned counsel argued that the brothers had nothing to gain by murdering these three because admittedly another son of Raj Kumar., Yadav was alive. It was also stated that in the year 1990, as it has come on the record, Raj Kuamr Yadav filed informatory petition against his in-laws as well against his other son. Learned counsel hinted that the living son had much to gain from the death. But a criminal case cannot be decided on conjectures or surmises. The evidence of eye-witness shows that the persons sleeping on the roof on that day in the night were the only members in the family available in the house that night. There is nothing to show that the other son had also come there or was present in the house. Therefore, on such speculative argument prosecution case cannot be doubted. 18. There is nothing to show that the other son had also come there or was present in the house. Therefore, on such speculative argument prosecution case cannot be doubted. 18. In view of the aforesaid, we find that the prosecution has proved its case beyond reasonable doubts against both the appellants. There does not appear to be any scope of interference in the judgment of the lower court. This being so, both the appeals fail and are dismissed. 19. Appellant Vijay Yadav is on bail. His bail bond is cancelled and he is ordered to be taken into custody in order to serve the remaining period of sentence.