VISHNU SAHAI, J. Three persons namely Karan Singh, Kunwar Bahadur Singh and Phool Singh were charged by the Additional Sessions Judge, Hamirpur (in Sessions Trial No. 90 of 1999) for offences punishable under Sections 302/34, 324 and 504 IPC. In addition, Karan Singh was charged (in Sessions Trial No. 165 of 1999) for the offence punishable under Section 25 of the Arms Act. Both Sessions trials were disposed off by the learned trial Judge vide judgment and order dated 28-4-2003. By the said order the learned Judge convicted and sentenced Karan Singh, Kunwar Bahadur Singh and Phool Singh in the manner stated hereinafter :- (i) Under Section 302/ 34 I. P. C. to death, and (ii) Under Section 324/34 I. P. C. to one years R. I. It is pertinent to mention that learned Judge acquitted Karan Singh, Kunwar Bahadur Singh and Phool Singh for the offence punishable under Section 504 I. P. C. and Karan Singh for that offence punishable under Section 25 of the Arms Act. 2. Criminal Appeal No. 2078 of 2003 has been preferred by Karan Singh, Kunwar Bahadur Singh and Phool Singh against the aforesaid convictions and sentences. Capital Sentence Reference No. 10 of 2003 arises out of the reference made by learned trial Judge to this Court under Section 366 (1) Cr. P. C. for confirmation of death sentence of Karan Singh, Kunwar Bahadur Singh and Phool Singh. 3. Since Criminal Appeal No. 2078 of 2003 and Capital Sentence Reference No. 10 of 2003 arise out of a common factual matrix and impugned judgment, we are disposing them off by one judgment. 4. Shortly stated the prosecution case runs as under : Informant Ramesh Kumar P. W. 1 is the brother-in-law of the deceased Malkhan Singh (Malkhan Singhs sister Gyan Kunwar is married to him), son-in-law of the deceased Ram Murti, brother-in-law of the deceased Km. Sadi, brother-in-law of the deceased Ms. Guddu and the uncle of the deceased Sobit. Ram Murti, Km. Sadi, Ms. Guddo and Sobit are the mother, sister, wife and son of Malkhan Singh respectively. At the time of the incident, informant was living in village Dhanwa within the limits or police station Zaria in District Hamirpur. At that time, the five deceased persons (named above), injured Mohd. Guddu and the uncle of the deceased Sobit. Ram Murti, Km. Sadi, Ms. Guddo and Sobit are the mother, sister, wife and son of Malkhan Singh respectively. At the time of the incident, informant was living in village Dhanwa within the limits or police station Zaria in District Hamirpur. At that time, the five deceased persons (named above), injured Mohd. Idris P. W. 2 and the three appellants namely Kunwar Bahadur Singh, Karan Singh and Phool Singh were living in Kasba and P. S. Maskhara situated in District Hamirpur. The appellants and the deceased persons were closely related. Channa Singh, father of the deceased Malkhan Singh, who had been murdered in 1982, was the real uncle of the appellants (Malkhan Singhs father Channa Singh and Sewa Singh, father of the appellants, were real brothers ). There was enmity between the deceased Malkhan Singh on one hand and the appellants on the other. In the year 1982, Channa Singh was murdered by appellant Karan Singh and his father Sewa Singh. Karan Singh and Sewa Singh were prosecuted for it. Since deceased Malkhan Singh, at that time, was aged about 7-8 years and was the only son of Channa Singh, Channa Singhs widow (the deceased Ram Murti) settled the matter with Karan Singh and Sewa Singh. The appellants were on the look out to usurp the property of the deceased Malkhan Singh. On 12-4-1999, deceased Malkhan Singh had gone with Mohd. Idris P. W. 2 for thrashing of wheat. Shortly before the incident, they returned therefrom. On the said date, at about 7. 45 p. m. when Mohd. Idris was sitting on his Gumti (shop) situated at the Tiraha of Bilgam road, adjoining which a hand-pump was installed, deceased Malkhan Singh came to take bath) at the said hand-pump. On the request of Malkhan Singh, Mohd. Idris gave him a Bidi. After smoking it, at about 8. 30 p. m. , when Malkhan Singh was proceeding to take bath appellants Kunwar Bahadur Singh, Karan Singh and Phool Singh armed with axe, came from the northern direction. As soon as they reached infront of the Gumti of Mohd. Idris, Kunwar Bahadur Singh inflicted an axe blow on Malkhan Singh, which providentially did not strike him and instead struck the Gumti of Mohd. Idris. Thereafter, Malkhan Singh ran towards the hand-pump. As soon as they reached infront of the Gumti of Mohd. Idris, Kunwar Bahadur Singh inflicted an axe blow on Malkhan Singh, which providentially did not strike him and instead struck the Gumti of Mohd. Idris. Thereafter, Malkhan Singh ran towards the hand-pump. Immediately, the appellants inflicted another axe blow on the person of Malkhan Singh but Mohd. Idris warded it off by raising his left hand. In the process, he sustained injuries. Thereafter, Karan Singh and Phool Singh assaulted Malkhan Singh with axe. He died as a result thereof. Mohd. Idris saw the murder of Malkhan Singh in the light of a lamp burning at his gumti. In the meantime, he raised cries that Malkhan Singh was being killed and he be saved. Raising them, he ran towards his house. On the way, fell the house of Malkhan Singh. Hearing his cries, Malkhan Singhs brother-in-law Ramesh Kumar P. W. 1, who had come to his house the previous day. Malkhan Singhs mother Ram Murti and Malkhan Singhs sister Km. Sadi came out from Malkhan Singhs house and rushed in the direction in which cries of Mohd. Idris were coming. Seeing this, appellants ran towards them. To save his life, Ramesh Kumar hid behind the Khandhar (dilapidated building) of Abduls house. Thereafter, appellants felled down Ram Murti and Karan Singh inflicted axe blow on her neck and killed her. When Km. Sadi raised cries, seeing her mother Ram Murti being assaulted, Kunwar Bahadur Singh inflicted axe blow on her. She also died on the spot. The murders of Ram Murti and Km. Sadi were witnessed by Mohd. Idris and Ramesh Kumar in the light of electric bulbs which were burning in the immediate vicinity of the place where they were being assaulted. Some other persons with torches have came on the place of the incident. The appellants fired twice towards them, brandished their axes in air; and said that if anyone tried to intervene he would meet same fate. Thereafter, the appellants entered inside the house of Malkhan Singh and assaulted Guddu and Sobit with axe. The informant heard their shrieks and when the appellants ran away, after murdering them, firing in air and brandishing their axes, he went inside the house of Malkhan Singh and saw that they were dead. Thereafter, the informant went near the Gumti of Mohd. The informant heard their shrieks and when the appellants ran away, after murdering them, firing in air and brandishing their axes, he went inside the house of Malkhan Singh and saw that they were dead. Thereafter, the informant went near the Gumti of Mohd. Idris, where he found the dead body of Malkhan Singh lying. Thereafter, the informant for some time lost control of his senses and when he regained his composure he sent for Akhilesh Kumar alias Lalla and informed him about the incident. On the basis of the information furnished by him, Akhilesh Kumar alias Lalla scribed the F. I. R. Then the informant alongwith Mohd. Idris went to the police station Muskhara and lodged the F. I. R. 5. The evidence of Head Constable Man Singh P. W. 3 shows : On 12- 4-1999, he was posted at police station Muskhara. On the said date, at 10. 10 p. m. informant Ramesh Kumar P. W. 1 alongwith injured Mohd. Idris P. W. 2 came to the police station and the informant lodged his F. I. R. , on the basis of which, he registered a case under Section 302/504, I. P. C. (vide crime No. 97 of 1999) against Kunwar Bahadur Singh, Karan Singh and Phool Singh. He also prepared chik F. I. R. It is pertinent to mention that a perusal of the chik F. I. R. shows that the distance between the place of incident and police station Muskhara was four furlongs. The evidence of Head Constable Man Singh further shows that he sent injured Mohd. Idris with home- guard Murlidhar for medical examination, to P. H. C. Muskhara. 6. The evidence of Dr. R. S. Verma P. W. 4 shows that on 13-4- 1999, at 7. 15 a. m. , while he was posted as Medical Officer, P. H. C. Muskhara, he medically examined Mohd. Idris P. W. 2 and found on his person the following injury: "incised wound 3 cm x 0. 3 cm x muscle deep present on Palm 2. 5 cm below the wrist joint. Clotting present around the wound. " A perusal of the injury report shows that the said injury was caused by hard and sharp object was simple in nature; and was about 12 hours old. In the statement in the trial Court, Dr. 3 cm x muscle deep present on Palm 2. 5 cm below the wrist joint. Clotting present around the wound. " A perusal of the injury report shows that the said injury was caused by hard and sharp object was simple in nature; and was about 12 hours old. In the statement in the trial Court, Dr. R. S. Verma, deposed that the said injury could have been caused on 12-4-1999 at about 8. 30 p. m. and was attributable to axe. 7. The evidence of S. O. Prakash Singh P. W. 7, in short shows :- On 12-4-1999 he was posted as S. O. Muskhara. At 10. 10 p. m. F. I. R was lodged in his presence by Ramesh Kumar P. W. 1. He immediately left for the place of incident and on the said date, itself, prepared the site plan. On 13-4-1999, he recorded the statement of informant and Mohd. Idris and directed Head Constable Indra Pal Singh P. W. 8 to perform the inquest on the corpse of the five deceased persons. On 14-4- 1999, he went to the house of the accused persons but did not find them. On 16-4-1999, he initiated proceedings for attachment of property of the accused persons. On 26-4-1999, after completing the investigation, he submitted charge sheet against the accused appellants. 8. Going backwards the evidence of S. O. Sharda Singh P. W. 6 of Police Station Jalalpur shows that on 17- 4-1999, accused persons were arrested. From the person of Karan Singh a country made single barrel gun with six cartridges was recovered. Thereafter, on the said date, on his pointing out three blood stained axes were also recovered. 9. Since S. O. Sharda Prasad Singh admitted in his cross- examination, that the recoveries were not made in the presence of public witnesses and Karan Singh has been acquitted for the offence punishable under Section 25 of the Arms Act, we are not entering into the details pertaining to them. 10. Once again going backwards, the autopsy on the corpse of five deceased persons namely Ram Murti, Malkhan Singh, Km. Sadi, Ms. Guddu and Sobit was conducted on 13-4-1999, at 2. 30 p. m. , 3. 00 p. m. , 3. 45 p. m. , 4. 45 p. m. and 5. 15 p. m. respectively by Dr. 10. Once again going backwards, the autopsy on the corpse of five deceased persons namely Ram Murti, Malkhan Singh, Km. Sadi, Ms. Guddu and Sobit was conducted on 13-4-1999, at 2. 30 p. m. , 3. 00 p. m. , 3. 45 p. m. , 4. 45 p. m. and 5. 15 p. m. respectively by Dr. R. C. Niranjan P. W. 5, who found thereon the ante mortem injuries enumerated below : Ram Murti (1) I/w 12 x 4 x bone deep on the right side extending to face 4 cm rt. to the chin horizontally placed. (2) I/w 16 x 7 x half of vertebral colour in deep on the right side of neck extending on the face cutting the lobules of rt. ear & 6 cm rt. to outer. . . . sic. . . . . . . . of the rt. eye. (3) Incised wound - 14 x 2 x brain deep on the right side of scalp ant. end touching to the ear (underlying bones are fractured ). (4) I/w - 6 x 1 x muscle deep on the lower part of the left side of face 2 cm above the parallel to mandible just below lower lip. (5) I/w - 13 cm x 3 cm x muscle deep on the back the right side of chest horizontally placed (at the level of 4th thoracic vertebrae. (6) I/w - 9 x 2 x muscle deep obliquely placed on the left side of the chest extending from 7th cervical vertebrae. Malkhan Singh (1) I/w 9 x 2 x bone deep on the rt. side of face upto mid of upper lip 4 cm below right eye horizontally placed. (2) I/w- 16 x 2. 5 x bone deep vertically placed on the left side of scalp just behind the left ear up to mastoid. (3) I/w 9 x 2. 5 x bone deep cutting the half of the spinal cord transversely on left side neck extending up to angle of mandible. (4) I/w- 12 x 3 x muscle deep on back of neck transversely placed 01 cm behind injury No. (3 ). (5) I/w- 7 x 3 x muscle deep on back of left shoulder joint. (6 ( I/w- on dorsal aspect of the middle & ring fingers (bone deep) on left hand obliquely placed. Km. (4) I/w- 12 x 3 x muscle deep on back of neck transversely placed 01 cm behind injury No. (3 ). (5) I/w- 7 x 3 x muscle deep on back of left shoulder joint. (6 ( I/w- on dorsal aspect of the middle & ring fingers (bone deep) on left hand obliquely placed. Km. Sadi (1) I/w 13 x 8 x bone deep on Rt. side of neck parallel to lower border of mandible extending 4 x 4. 5 cm below ear to half of the mandible. (2) I/w- 6 x 1 x muscle deep, 1 cm below and parallel to the injury No. 1 on Rt. side of neck. Ms. Guddo (1) I/w 13 x 2 x bone deep (upto 1/2 of vertebral column) on left side of neck, parallel to lower border of the mandible extending 3 1/2 cm below rt. ear to front of neck. (2) I/w- 6 x 2 x muscle deep left side of the neck cm below & parallel to injury No. 1 trachea transversely cut on the side of injury. (3) I/w Rt. side of shoulder 6 x 2 x muscle deep 5 cm lat. to root of neck. (4) I/w 4 x 1= 1/2 x muscle deep on post aspect of Rt. shoulder. Sobit. (1) I/w 5 x 1= 1/2 cm x muscle deep left side of die face on the mandible lobule of lt. ear to angle of mouth. (2) I/w 5 1/2 x 2 x cervical vertebrae deep on back of the neck transversely in position. (3) I/w 10 x 1 = 1/2 x muscle deep on the back of the Rt. side of chest extending from mid line. . sic. . to deltoid region of upper arm. (4) I/w 5 x 1 1/2 x full arm deep (both bone cut) only tag of skin left on the front of Rt. forearm 1 cm below elbow. (5) I/w 4 x 2 x bone deep on the front of Rt. wrist transversely imposition. It is pertinent to mention that Dr. Niranjan found in the stomach of: deceased Ram Murti 250 gms of semi digested food; deceased Malkhan Singh 150 gms of semi digested food; and deceased Km. Sadi 200 gms of semi digested food. He, however, found stomach of Guddo and Sobit to be empty. In his statement in the trial Court, Dr. It is pertinent to mention that Dr. Niranjan found in the stomach of: deceased Ram Murti 250 gms of semi digested food; deceased Malkhan Singh 150 gms of semi digested food; and deceased Km. Sadi 200 gms of semi digested food. He, however, found stomach of Guddo and Sobit to be empty. In his statement in the trial Court, Dr. Niranjan stated that the ante mortem injuries suffered by the deceased persons could have been caused on the night of 12-4-1999 at about 8. 30 p. m. with axe. 11. The case was committed to the Court of Sessions in usual manner, where the appellants were charged in the manner stated in para-1. They pleaded not guilty to the charges and claimed to be tried. Their defence was of denial. During trial, in all, the prosecution examined eight witnesses. Two of them, namely, Ramesh Kumar P. W. 1 and Mohd. Idris P. W. 2 were examined as eye witnesses. The learned trial Judge believed their evidence and convicted and sentenced the appellants in the manner stated in para-1. Hence, this appeal and reference. 12. We have heard learned counsel for the parties and perused : the depositions of the prosecution witnesses; the material exhibits tendered and proved by the prosecution; the statements of appellants recorded under Section 313 Cr. P. C. and the impugned judgment. After the utmost circumspection, in our judgment, Criminal Appeal No. 2078 of 2003 deserves to be partly allowed, inasmuch as appellant Phool Singh does not deserve the extreme penalty of death for the offence punishable under Section 302/34 I. P. C. and a sentence of imprisonment for life thereunder, would meet the ends of justice. We are, however, of the view that his conviction and sentence for the offence punishable under Section 324/34 I. P. C. merits no interference and the convictions and sentences of appellants Karan Singh and Kunwar Bahadur Singh on both the counts namely under Sections 302/34 and 324/34 I. P. C. warrant no interference. We are also of the judgment that the reference made by learned trial Judge under Section 366 (4) Cr. P. C. for confirmation of death sentence of Karan Singh, Kunwar Bahadur Singh and Phool Singh (which has given rise to Capital Sentence Reference No. 10 of 2003) deserves to be accepted vis-a- vis Karan Singh and Kunwar Bahadur Singh but warrants to be rejected against Phool Singh. P. C. for confirmation of death sentence of Karan Singh, Kunwar Bahadur Singh and Phool Singh (which has given rise to Capital Sentence Reference No. 10 of 2003) deserves to be accepted vis-a- vis Karan Singh and Kunwar Bahadur Singh but warrants to be rejected against Phool Singh. We now propose furnishing our reasons for reaching the said conclusion. 13. It would become manifest from the above that learned trial Judge has based the conviction of appellants on the ocular testimony of informant Ramesh Kumar P. W. 1 and Mohd. Idris P. W. 2. In our judgment, their evidence inspires confidence. We now propose dealing with their evidence and would first like to take up the evidence of Mohd. Idris P. W. 2, the injured eye witness of the incident. 14. The evidence of Mohd. Idris, in short, shows as under : He is a resident of Qasba Muskhara, wherein the five deceased persons also resided. On the date of the incident, he and deceased Malkhan Singh had gone for thrashing wheat of Akhilesh alias Lalla. At about 6 p. m. , they returned therefrom. He then sat at his Gumti (shop) situated at the tiraha of Bilgam road, adjoining which a hand-pump was installed. At about 7. 45 p. m. deceased Malkhan Singh came there to take a bath. On his request, he gave him a Bidi. At about 8. 30 p. m. , after smoking the same, when he was about to take a bath at the hand- pump, the three appellants namely Karan Singh, Kunwar Bahadur Singh and Phool Singh armed with axes came. In the light of lamp, which was burning at his Gumti, he saw that appellant Kunwar Bahadur Singh inflicted axe blow on Malkhan Singh, which providentially did not strike him and instead struck his (Mohd. Idriss) Gumti. Thereafter, as soon as Malkhan Singh started running in the direction of hand-pump, the appellants inflicted another axe blow on him, which he (Mohd. Idris) warded off by raising his left hand. In the process, he sustained injuries. Thereafter, appellants Karan Singh and Phool Singh inflicted axe blows on Malkhan Singh who died as a result thereof. Then, he (Mohd. Idris) shouting that Malkhan Singh is being killed and he be saved, ran in the direction of his house. On the way, fell the house of Malkhan Singh. Hearing his cries, Malkhan Singhs sister Km. Thereafter, appellants Karan Singh and Phool Singh inflicted axe blows on Malkhan Singh who died as a result thereof. Then, he (Mohd. Idris) shouting that Malkhan Singh is being killed and he be saved, ran in the direction of his house. On the way, fell the house of Malkhan Singh. Hearing his cries, Malkhan Singhs sister Km. Sadi and mother Ram Murti came. A number of other persons of the locality also came. As soon as Ram Murti and Sadi had reached near the house of Abdul, appellants felled down Ram Murti and appellant Karan Singh inflicted axe blow on her neck and killed her. Thereupon, Km. Sadi raised cries that her mother was being killed, whereupon appellant Kunwar Bahadur Singh inflicted axe blows on her and killed her. Thereafter, appellants entered inside the house of Malkhan Singh and he (Mohd. Idris) went to his house. Next morning he was medically examined. 15. We have gone through the evidence of Mohd. Idris and have no reservations in observing that we find him to be a implicitly truthful witness. In the first place, he has explained his presence on the place of incident. He has stated that on the date of the incident at about 7. 45 p. m. , while he was sitting at his gumti (shop), deceased Malkhan Singh came there. On his request he gave him a beedi and after smoking the same, when he was about to proceed to the hand-pump (which adjoined his (Mohd. Idriss) gumti) to take a bath, the three appellants Karan Singh, Kunwar Bahadur Singh and Phool Singh came and thereafter as we have seen in the preceding paragraph, the incident took place. Secondly, the manner of assault as furnished by him is corroborated by medical evidence. He stated that when the appellants inflicted axe blow on Malkhan Singh, he raised his left hand and in the process he sustained injuries. We have earlier seen that next morning at 7. 15 a. m. his injuries were medically examined by Dr. R. S. Verma, who found on his person an incised wound 3 cm. x 0. 5 cm x muscle deep present on left palm, 2. 5 cm below wrist joint and clotting of blood present around the wound. We have also seen that in the injury report Dr. 15 a. m. his injuries were medically examined by Dr. R. S. Verma, who found on his person an incised wound 3 cm. x 0. 5 cm x muscle deep present on left palm, 2. 5 cm below wrist joint and clotting of blood present around the wound. We have also seen that in the injury report Dr. Verma has noted that said injury was caused by a hard and sharp object; was simple in nature; and was about 12 hours old. It is common knowledge that axe is a hard and sharp object and therefore we have no hesitation in accepting that his injury could be caused by axe. It is pertinent to mention that the duration furnished by Dr. Verma in the injury report i. e. 12 hours old also fits in with the time of the incident. We have seen that incident took place on 12. 4. 1999 at about 8. 30 p. m. It is pertinent to mention that although Dr. Verma was cross examined but no suggestion was given to him that his injury could be manufactured. In the absence of the same we are not inclined to accept the submission of Mr. Kamal Krishna, learned counsel for the appellants, that his injury was manufactured. Another reason, which, in our view, makes it manifest that his injury was not manufactured, is that in the prompt F. I. R. of the incident, which was lodged by Ramesh Kumar at 10. 10 p. m. on the date of the incident itself i. e. within one hour and forty minutes of the incident taking place, it has been mentioned that he (Mohd. Idris) sustained injuries. We also find that manner of assault as furnished by him in relation to Malkhan Singh, Ram Murti and Sadi is corroborated by medical evidence. His evidence shows appellants Karan Singh and Phool Singh murdered Malkhan Singh by inflicting axe blows on his person. His evidence further shows that appellant Karan Singh inflicted axe blows on Ram Murti and appellant Kunwar Bahadur Singh assaulted Km. Sadi with axe. It is pertinent to mention that ante mortem injuries suffered by Malkhan Singh, Ram Murti and Km. Sadi corroborate his evidence. We have earlier seen that on the person of Malkhan Singh and Ram Murti the autopsy surgeon Dr. Niranjan found six incised wounds and on that of Km. Sadi two incised wounds. Sadi with axe. It is pertinent to mention that ante mortem injuries suffered by Malkhan Singh, Ram Murti and Km. Sadi corroborate his evidence. We have earlier seen that on the person of Malkhan Singh and Ram Murti the autopsy surgeon Dr. Niranjan found six incised wounds and on that of Km. Sadi two incised wounds. We have also seen that according to the evidence of the autopsy surgeon aforesaid deceased persons could have been done to death on 12-4-1999 at 8. 30 p. m. (the date and time of the incident) and their injuries could be caused by axe. Thirdly, there was adequate light for Mohd. Idris to have recognised the appellants. The evidence is that at his gumti a lamp was burning and in the vicinity of the place where deceased Ram Murti and Km. Sadi were assaulted electric light was burning. In our judgment, in the said light he would have had no difficulty in recognising the three appellants. Fourthly, his cross-examination shows that he is an independent witness, who had no rancour or ill-will against the appellants, and, in our view, in the absence of the same he would not have falsely implicated them. 16. We feel it pertinent to mention that although Mohd. Idris was extensively cross examined but nothing could be extracted therefrom which could impair his credibility on the substratum of the prosecution case. 17. For the aforesaid reasons, in our judgment, the testimony of Mohd. Idris, who is an injured witness of the incident; whose injuries not only fit in with the manner of assault as furnished by him but also with the duration furnished by Dr. R. S. Verma, who medically examined him alone is sufficient to nail the fate of the appellants. 18. However, we are fortunate in this case in having plurality of ocular account in the form of that furnished by informant Ramesh Kumar PW-1. His evidence, in short, shows : He is the brother-in-law of the deceased Malkhan Singh, inasmuch as Malkhan Singhs sister Gyan Kunwar is married to him. A day prior to the incident he had come to the house of Malkhan Singh situated in kasba Muskhara. On 12-4-1999, sometimes before 8. 30 p. m. Malkhan Singh had gone to the hand-pump, situated near the shop of Mohd. Idris, to take a bath. At about 8. A day prior to the incident he had come to the house of Malkhan Singh situated in kasba Muskhara. On 12-4-1999, sometimes before 8. 30 p. m. Malkhan Singh had gone to the hand-pump, situated near the shop of Mohd. Idris, to take a bath. At about 8. 30 p. m. while he, his mother-in-law Ram Murti, his sister-in-law Km. Sadi (sister of Malkhan Singh), his sister-in-law Ms. Guddo (wife of Malkhan Singh ) and his nephew Sobit (son of Malkhan Singh) were sitting in the court- yard of Malkhan Singhs house and were having dinner, cries of Mohd. Idris that appellant Karan Singh, Kunwar Bahadur Singh and Phool Singh were assaulting Malkhan Singh, were heard. Thereafter, he, Ram Murti and Km. Sadi came out and ran in the direction of Mohd Idriss shop. Ram Murti and Km. Sadi were ahead of him. The appellants with axes were chasing Mohd. Idris. As soon as they reached near Ram Murti and Km. Sadi, they assaulted them with axes. They fell down dead on the spot. He saw the assault on them in electric light which was burning in the vicinity. He raised cries and in order to save himself hid behind the Khandhar (dilapidated building) of Abduls house. Hearing his cries, a number of persons came from village with torches. Thereafter the appellants fired twice and brandished their axes saying that if any one intervened he would meet the same fate. Then the appellants entered inside the house of Malkhan Singh. He heard cries of his sister-in-law Guddo and his nephew, Sobit. He then saw appellants coming out from Malkhan Singhs house and running away, firing in the air. He then entered inside Malkhan Singhs house and found that Guddo and Sobit were dead. 19. We have gone through the evidence of Ramesh Kumar PW-1 and make no bones in observing that we find him to be a wholly credible witness. In the first place, he was explained his presence on the place of incident, which was in the proximity of the house of deceased Malkhan Singh, who was his brother-in-law. He (Ramesh Kumar) stated that a day prior to the incident he had come to Malkhan Singhs house. We find nothing unnatural in his claim of coming to his brother-in-laws house. He further stated that on the date of the incident at about 8. He (Ramesh Kumar) stated that a day prior to the incident he had come to Malkhan Singhs house. We find nothing unnatural in his claim of coming to his brother-in-laws house. He further stated that on the date of the incident at about 8. 30 p. m. when he was present in the house he heard cries of Mohd. Idris that Malkhan Singh was being killed and consequently alongwith his mother-in-law Ram Murti and sister-in-law Km. Sadi rushed towards the gumti of Mohd. Idris. By the said time Malkhan Singh had been murdered, but he saw the murders of Ram Murti and Km. Sadi being committed and heard the cries of his sister-in-law Guddo and nephew Sobit. Secondly, the manner of assault as furnished by him is corroborated by medical evidence. He has stated that appellants belaboured Ram Murti and Km. Sadi with axes and we have earlier seen that the autopsy surgeon Dr. R. C. Niranjan found on the person of Km. Sadi two incised wounds and on that of Ram Murti six incised wounds, which, in his opinion, could be caused on 12- 4-99 at 8. 30 p. m. (the date and time of the incident) by axes. His evidence shows that after murdering Ram Murti and Km. Sadi the appellants, who were armed with axes, entered inside the house of Malkhan Singh, from where he heard the shrieks of Ms. Guddo and Sobit, the wife and son respectively of Malkhan Singh. We feel it pertinent to mention that on the person of Guddo and Sobit the autopsy surgeon Dr. Niranjan also found incised wounds; four on the person of the former and five on the person of the latter. Dr. Niranjan also stated that their injuries could also have been caused on 12-4-1999 at 8. 30 p. m. by axes. Thirdly, he would have had no difficulty in recognising the appellants who were sons of his real uncle in law Sewa Singh and who were known to him from before the incident. At any rate, there was adequate light wherein he could have identified them. His evidence shows that electric light was burning in the vicinity where Ram Murti and Km. Sadi were assaulted. At any rate, there was adequate light wherein he could have identified them. His evidence shows that electric light was burning in the vicinity where Ram Murti and Km. Sadi were assaulted. Fourthly, he had no direct rancour or ill-will against the appellants, who were the sons of Sewa Singh, his real uncle in law, and in our view, in the absence of the same he would not have falsely implicated them. 20. It is pertinent to mention that although Ramesh Kumar was extensively cross-examined but nothing could be extracted therefrom which could erode his credibility on the core of the prosecution case. 21. For the aforesaid reasons, in our judgment, the evidence of Ramesh Kumar PW-1 also inspires implicit confidence and by itself is sufficient to sustain the conviction of the appellants. 22. Assurance to the ocular account furnished, by Ramesh Kumar is forthcoming by the prompt F. I. R. of the incident, which was lodged by him at Police Station Muskhara. We have seen that the incident took place on 12-4-1999 at 8. 30 p. m. and the same night at 10. 10 p. m. he lodged the F. I. R. at Police Station Muskhara which was situated at a distance of four furlongs from the place of the incident. In our judgment, the F. I. R. was very promptly lodged. The evidence of Ramesh Kumar shows that immediately after the incident he lost control over his senses and only after half an hour when he regained it, he dictated the F. I. R. to Akhilesh alias Lalla. A perusal of the F. I. R. shows that it runs in practically two foolscap sheets. Some time must have been consumed in scribing the F. I. R. Thereafter he must have taken some time in proceeding, alongwith Mohd. Idris, to Police Station Muskhara, where he lodged the F. I. R. We find nothing unnatural in his having lost control over his senses and regaining them after half an hour. It should be borne in mind that his five very close relations had been butchered to death by the appellants. In our judgment, in such a situation any normal person would have lost his senses. In our view, considering the aforesaid facts the F. I. R. was promptly lodged by him. It should be borne in mind that his five very close relations had been butchered to death by the appellants. In our judgment, in such a situation any normal person would have lost his senses. In our view, considering the aforesaid facts the F. I. R. was promptly lodged by him. It is pertinent to mention that in this prompt F. I. R. of the incident the essential features of the prosecution case, including :- the date of the incident; the time of the incident; the place of the incident; the names of appellants; the weapons in the hands of the appellants; the manner of assault; the factum of Mohd. Idris receiving injuries; the motive for the incident; and the fact that he came to the house of his brother-in-law Malkhan Singh on 11-4-1999, are all mentioned. 23. Criminal Courts attach great importance to the lodging of a prompt F. I. R. because the same substantially eliminates the probability of embellishment and concoction creeping in the prosecution version. In our judgment, the prompt F. I. R. of the incident, wherein all material details pertaining to the incident, have been furnished, lends a seal of assurance to the claim of Ramesh Kumar of having seen the incident. It is pertinent to mention that although constable moharir Man Singh P. W. 3, who registered the case on the basis of the F. I. R. and the Investigating Officer S. O. Sri Prakash Singh P. W. 7, in whose presence F. I. R. was lodged, were extensively cross-examined but apart from the suggestion given to the latter in his cross-examination that at the instance of Akihlesh (scribe of the F. I. R.), the informant Ramesh Kumar was called from his house by the police of Zaria Police Station, and thereafter the F. I. R. was prepared, which suggestion the latter denied, there is nothing to show that the F. I. R. is ante timed. On the other hand, the circumstances show that the F. I. R. was lodged on 12-4-1999 at 10. 10 p. m. In this connection, we would like to advert to the cross-examination of constable moharir Man Singh P. W. 3, who stated therein that within five minutes of the lodging of the F. I. R. , the Investigating Officer left for the place of the incident and to the evidence of Mohd. 10 p. m. In this connection, we would like to advert to the cross-examination of constable moharir Man Singh P. W. 3, who stated therein that within five minutes of the lodging of the F. I. R. , the Investigating Officer left for the place of the incident and to the evidence of Mohd. Idris, who in his examination-in-chief stated that the Investigating Officer reached the place of incident the same night at 11. 00 p. m. and performed the inquest that night between 3 a. m. and 5 a. m. These circumstances, in our judgment, show that the F. I. R. was lodged at the time alleged by the prosecution. 24. For the aforesaid reasons, in our judgment, the testimony of Ramesh Kumar P. W. 1 and Mohd. Idris P. W. 2 inspires implicit confidence and is sufficient to fix the involvement of the appellants in the incident. 25. There can be no manner of doubt that the learned trial Judge acted correctly in convicting the appellants for offences punishable under Sections 324/34 I. P. C. and 302/34 I. P. C. The evidence of both the eye witnesses, which we have discussed in detail earlier, makes it manifest that both, the assault on Mohd. Idris and the five murders were committed by the appellants in furtherance of their common intention. 26. This leaves us with only one question namely whether the learned trial Judge was justified in imposing the sentence of death on the three appellants namely Karan Singh, Kunwar Bahadur Singh and Phool Singh. Our answer to it is in affirmative, so far as appellants Karan Singh and Kunwar Bahadur Singh are concerned but in the negative so far as appellant Phool Singh is concerned. 27. In our judgment, the sordid, brutal, depraved, callous and heartless manner, in which the appellants Karan Singh and Kunwar Bahadur Singh committed the five murders of their closest kith and kin, wiping out the entire family of Malkhan Singh in order to grab his property puts their case in the pigeon-hole of "rarest of rare". In our view, only a death sentence would be commensurate with the gravity of the crime committed by them and the lesser sentence of imprisonment for life would be mockingly inadequate and act as an incentive for persons to commit multiple murders of the present type. In our view, only a death sentence would be commensurate with the gravity of the crime committed by them and the lesser sentence of imprisonment for life would be mockingly inadequate and act as an incentive for persons to commit multiple murders of the present type. The evidence of the eye witnesses shows that appellants Karan Singh and Kunwar Bahadur Singh alongwith appellant Phool Singh, in furtherance of common intention, armed with axes, committed these multiple murders. The evidence of Mohd. Idris P. W. 2 shows that Karan Singh assaulted the deceased Ram Murti with axe and along with Phool Singh assaulted Malkhan Singh with axe. The post-mortem reports of Ram Murti and Malkhan show that each of them sustained six incised wounds. The evidence of the informant Ramesh Kumar shows that thereafter Karan Singh, alongwith Phool Singh and Kunwar Bahadur Singh, all armed with axes, entered inside the house of Malkhan Singh and immediately thereafter shrieks of Malkhan Singhs wife Guddo and Malkhan Singhs son Sobit were heard. We have seen that on the person of Guddo, the autopsy surgeon found four incised wounds and on that of Sobit five incised wounds. We also find that appellant Kunwar Bahadur Singh played a very major role in the incident. The evidence of Mohd. Idris shows that he gave an axe blow on Malkhan Singh, which providentially did not stike him and instead struck his Gumti (Gumti of Mohd. Idris ). His evidence also shows that it was Kunwar Bahadur Singh, who inflicted axe blows on Km. Sodi. The evidence of the autopsy surgeon corroborates this. We have earlier seen that he found on Km. Sodis person, two incised wounds. The evidence of the informant shows that after murdering Ram Murti and Km. Sodi, Kunwar Bahadur Singh alongwith Karan Singh and Phool Singh, all armed with axes, entered inside the house of Malkhan Singh and immediately thereafter shrieks of Malkhan Singhs wife Guddo and Malkhan Singhs son Sobit were heard. We have seen that the autopsy surgeon found on the person of Guddo four incised wounds and on Sobits person, five incised wounds. 28. In our judgment, there is no extenuating circumstance in favour of appellants Karan Singh and Kunwar Bahadur Singh, which would warrant the imposition of the lesser sentence of imprisonment for life. We have seen that the autopsy surgeon found on the person of Guddo four incised wounds and on Sobits person, five incised wounds. 28. In our judgment, there is no extenuating circumstance in favour of appellants Karan Singh and Kunwar Bahadur Singh, which would warrant the imposition of the lesser sentence of imprisonment for life. A perusal of the statement of Karan Singh and Kunwar Bahadur Singh recorded under Section 313 Cr. P. C. (it was recorded on 20-8-2002) shows that they have furnished their age as 42 years and 38 years respectively. This would mean that on the date of the incident Karan Singh was aged about 38 1/2 years and Kunwar Bahadur Singh was aged about 34 1/2 years (the incident took place on 12-4-1999 ). In other words, they were fully grown up persons at the time of the incident and therefore it can be safely presumed that they were possessed of sufficient understanding. If despite this, for the lust of property they wiped out not only Malkhan Singh but his entire family, they deserve no sympathy. At the cost of repetition, we would like to point out that the case of appellant Karan Singh and Kunwar Bahadur Singh would fall in the category of "rarest of rare"; warranting only imposition of death sentence. 29. But, in our judgment, the case of the appellant Phool Singh would not fall in the category of "rarest of rare"; warranting only the imposition of death sentence. We feel that a sentence of imprisonment for life instead would meet the ends of justice. We are not oblivious to the fact that the injured Mohd. Idris has assigned to him the specific role of assaulting alongwith appellant Karan Singh with an axe the deceased Malkhan Singh and the autopsy report of Malkhan Singhs shows that he sustained six incised wounds. We are also not unmindful of the fact that informant Ramesh Kumar has stated that he (Phool Singh) alongwith Karan Singh and Kunwar Bahadur Singh entered inside the house of Malkhan Singh, where immediately thereafter shrieks of Malkhan Singhs wife Guddo and his son Sobit were heard. We are also not oblivious to the fact that on the person of Guddo, the autopsy surgeon found four incised wounds and on that of Sobit five incised wounds. We are also not oblivious to the fact that on the person of Guddo, the autopsy surgeon found four incised wounds and on that of Sobit five incised wounds. But, at the same time, we cannot shut our eyes to the grim reality that he was aged about 16 1/2 years at the time of the incident and on account of domination and influence of his elder brothers Karan Singh and Kunwar Bahadur Singh, may have committed the crime. We say that he was aged about 16 1/2 years at the time of the incident because in his statement recorded under Section 313 Cr. P. C. (it was recorded on 20-8- 2002), he has furnished his age as 20 years. Since the incident took place on 12-4-1999 it is manifest that he was aged about 16 1/2 years at that time. There is no note of the learned trial Judge that the estimate of his age as furnished by him in his statement under Section 313 Cr. P. C. is incorrect. The Supreme Court in the case of Raisul v. State of U. P. , AIR 1977 SC 1822 , has held that the estimate of age given in the statement under Section 313 Cr. P. C. should be accepted as correct. In such a situation, it would be presumed that he was aged about 16 1/2 years at the time of the incident. A perusal of paras 202, 206 and 207 of the case of Bachan Singh v. State of Punjab, 1980 SCC (Cri.) 580 would show that two of the mitigating circumstances, which do not warrant the imposition of death sentence are :- (a) the age of the accused, if he is too young or old, he should not be sentenced to death and (b) that the accused acted under duress or domination of another person. In our view, the aforesaid circumstances are applicable in the case of appellant Phool Singh and consequently his sentence for the offence punishable under Section 302/34 I. P. C. deserves to be reduced from death to imprisonment for life. 30. We would be failing in our fairness, if before proceeding to the operative part of the judgment, we do not deal with the principle submissions canvassed by Mr. Kamal Krishna, learned counsel for the appellants. His first submission is that the evidence of both the eye witnesses namely Mohd. 30. We would be failing in our fairness, if before proceeding to the operative part of the judgment, we do not deal with the principle submissions canvassed by Mr. Kamal Krishna, learned counsel for the appellants. His first submission is that the evidence of both the eye witnesses namely Mohd. Idris P. W 2 and Ramesh Kumar P. W. 1 does not inspire any confidence and the second is that the instant case does not warrant the imposition of death sentence on the appellants. 30-A. Mr. Kamal Krishna firstly urged that Mohd. Idris sustained a trivial incised wound on his left palm, which could have been manufactured. He contended that the circumstance that he was medically examined on 13-4-1999 at 7. 15 a. m. i. e. nearly 11 hours after the incident, shows that time was spent in manufacturing it. We regret that we do not find any merit in this submission. It is pertinent to mention that Dr. R. S. Verma P. W. 4 examined his injuries at P. H. C. Muskhara. It is common knowledge that at night doctors are not available in Government Health Centres in rural areas. That apart, his injury was not very serious. If in the circumstances, he was not immediately medically examined at night and was instead examined the next morning, no capital can be made out from his belated medical examination. It is pertinent to mention that no suggestion was given to Dr. Verma in his cross-examination that the said injury was manufactured and in the absence of the same it would be unfair to conclude that injury of Mohd. Idris was manufactured. It is pertinent to mention that in the prompt F. I. R. of the incident, which was lodged by Ramesh Kumar PW-1 within one hour and forty minutes of the incident taking place, it has been mentioned that Mohd. Idris sustained injuries. Hence, this submission fails. 30-B. Mr. Kamal Krishna secondly urged that had Mohd. Idris actually sustained injury then on the basis of the F. I. R. only an offence punishable under Section 302/504 I. P. C. would not have been registered but one under Section 324 I. P. C. would also have been registered. In our judgment, there is no merit in this submission. It is pertinent to mention that in the F. I. R. itself there is a mention that Mohd. Idris sustained injury. In our judgment, there is no merit in this submission. It is pertinent to mention that in the F. I. R. itself there is a mention that Mohd. Idris sustained injury. That being so, in our view, if on account of incompetence/carelessness of Constable Moharrir Man Singh PW-3, who registered the case on the basis of the F. I. R. , a case under Section 324 I. P. C. was not registered, the evidence of Mohd. Idris cannot be condemned. 31. We also do not find any merit in the submissions canvassed by Mr. Kamal Krishna, assailing the testimony of Ramesh Kumar PW-1. 31-A. Mr. Kamal Krishna firstly contended that Mohd. Idris does not state that Ramesh Kumar P. W. 1 saw the incident. He contended that had he seen the same, he would have deposed about his presence. He urged that in Ramesh Kumar prosecution has planted a false eye witness. We have considered the said submission and regret that we do not find any merit in it. It is true that Mohd. Idris does not state that Ramesh Kumar saw the incident, but in our view, this does not mean that he actually did not see it. It should be borne in mind that the crime was committed in a brutal and heartless manner. One can very well imagine the mental state in which Mohd. Idris must have been after seeing it. If in such a situation he failed to notice the presence of Ramesh Kumar he cannot be faulted. It is pertinent to mention that Mohd. Idris in his cross-examination has stated that for the first time on the night of incident, he met Ramesh Kumar, at about 10. 00 p. m. , in Kasba Muskhara itself. It should be borne in mind that Ramesh Kumar resided in another village namely Dhangawa. In our judgment, had he not been present on the place of incident and was called from Dhangawa, by the police of Police Station Zaria, as suggested by the defence, he could not have been present in Kasba Muskhara at 10. 00 p. m. Further, it is pertinent to mention that the evidence of constable moharir Man Singh P. W. 3 snows that on 12-4-1999 at 10. 00 p. m. Further, it is pertinent to mention that the evidence of constable moharir Man Singh P. W. 3 snows that on 12-4-1999 at 10. 10 p. m. , Ramesh Kumar lodged the F. I. R. It should also be borne in mind that the FIR is a written one and runs into nearly 1 and 3 quarter of foolscap sheet and therein graphic details of the incident have been furnished. Naturally, some time must have been taken in scribing it. These circumstances, in our judgment, show that Ramesh Kumar saw the incident and was not subsequently called at the place of the incident. Hence, this submission fails. 31-B. Mr. Kamal Krishna secondly urged that since Ramesh Kumar is brother-in-law of the deceased Malkhan Singh and is a very close relation of other deceased persons it would be hazardous to accept his testimony. We regret that we do not find any merit in this submission. The law only enjoins that the testimony of an interested witness be evaluated with caution and not mechanically rejected. We have exercised the said caution and reached the conclusion that his evidence is creditworthy. 31-C. Mr. Kamal Krishna thirdly urged that had Ramesh Kumar been present on the place of the incident, he would have deposed as to who caused the injury to Mohd. Idris. We regret that we do not find any merit in this submission. The evidence of Mohd. Idris and Ramesh Kumar makes it manifest that by the time the latter came, the former had been assaulted. 31-D. Mr. Kamal Krishna fourthly urged that had Ramesh Kumar been present on the place of incident, he would not have escaped without suffering injuries. We regret that we do not find any merit in this submission either. The evidence of Ramesh Kumar shows that after seeing the appellants committing the murders of Ram Murti and Km. Sadi he hid behind Abduls Khandhar (dilapidated building) from where he saw the incident. In our view, since he hid there, the appellants had no chance to assault him. 31-E. Mr. Kamal Krishna fifthly urged that the story of Ramesh Kumar hiding behind Abduls Khandhar (dilapidated building) has neither been mentioned in the F. I. R. nor in the statement of Ramesh Kumar recorded under Section 161 Cr. P. C. and has been introduced in order to explain the absence of injuries on his person. 31-E. Mr. Kamal Krishna fifthly urged that the story of Ramesh Kumar hiding behind Abduls Khandhar (dilapidated building) has neither been mentioned in the F. I. R. nor in the statement of Ramesh Kumar recorded under Section 161 Cr. P. C. and has been introduced in order to explain the absence of injuries on his person. We regret we do not find any merit in the submission. It should be borne in mind that the F. I. R. is not an encyclopaedia and all details are not required to be mentioned therein. It is true that in his statement under Section 161 Cr. P. C. he has not told the Investigating Officer that he hid behind khandhar but in our view merely on account of this omission his statement in the trial Court that he hid behind it cannot be rejected. 31-F. Mr. Kamal Krishna finally urged that in his F. I. R. Ramesh Kumar, stated that when he, his mother- in-law Ram Murti, his sister-in-law Km. Sadi, his sister-in-law Guddo and Sobit were eating dinner in the courtyard of the house, he heard cries of Mohd. Idris and then he, Ram Murti and Km. Sadi rushed towards Idriss gumti. He contended that this is belied by medical evidence. He invited our attention to autopsy reports of Ram Murti and Km. Sadi, which show presence of 250 grams and 200 grams of semi- digested food respectively in their stomach. Mr. Kamal Krishna urged that the presence of semi-digested food in their stomach shows that incident did not take place on 12-4-1999 at 8. 30 p. m. as alleged by the prosecution, but sometimes around mid night. We have examined this submission and do not find any merit in it. Firstly, books on medical jurisprudence show that the process of digestion even continues after death and that being so, presence of semi-digested food in the stomach of Ram Murti and Km. Sadi would not belie the time of incident. Secondly, during cross-examination when Ramesh Kumar was questioned about this, he stated that he was having dinner and others were not having it and he used the words "hum Log Aangan Main Khana Kha Rahe The" (we were eating dinner in the court-yard) in the F. I. R because others were also sitting there. Secondly, during cross-examination when Ramesh Kumar was questioned about this, he stated that he was having dinner and others were not having it and he used the words "hum Log Aangan Main Khana Kha Rahe The" (we were eating dinner in the court-yard) in the F. I. R because others were also sitting there. It should be borne in mind that he lodged the F. I. R. within one hour and forty minutes of the incident taking place. It should also be remembered that in the incident, including Malkhan Singh, five very close kith and kin of his had been murdered. It can well be imagined that he must have been under enormous mental tension when he furnished the details of the incident to Akhilesh Kumar, who scribed the F. I. R. Therefore, in our view, no capital can be made of the fact that in the F. I. R. he has mentioned that they were having dinner. For the said reasons, this submission is also devoid of merit. 32. Mr. Kamal Krishna also urged that since the instant case does not fall in the category of "rarest of rare" none of the three appellants warrant to be sentenced to death. He contended that the informant Ramesh Kumar has not assigned any specific overt act to any of them. He also urged that learned trial Judge has not convicted them under Section 302 I. P. C. simplicitor but under Section 302/34 I. P. C. He further contended that appellant Phool Singh was aged about 16 1/2 years at the time of incident and in view of his tender age he does not deserve the sentence of death. We have considered this submission in paragraphs 26 to 29 and for the reasons mentioned therein have held that appellants Karan Singh and Kunwar Bahadur Singh deserve the sentence of death but not appellant Phool Singh, in whose case a sentence of imprisonment for life would meet the end of justice. In the circumstances, we do not want to burden our judgment by reiterating the reasons. 33. In the result : A. Criminal Appeal No. 2078 of 2003: The appeal is partly allowed. In the circumstances, we do not want to burden our judgment by reiterating the reasons. 33. In the result : A. Criminal Appeal No. 2078 of 2003: The appeal is partly allowed. We uphold the conviction and sentence of appellants Karan Singh, Kunwar Bahadur Singh and Phool Singh for the offence punishable under Section 324/34 I. P. C. We also uphold their conviction for the offence punishable under Section 302/34 I. P. C. and the sentence of death awarded to appellants Karan Singh and Kunwar Bahadur Singh thereunder. We however set aside the sentence of death awarded thereunder to appellant Phool Singh and instead sentence him to suffer imprisonment for life. The sentences of appellants Karan Singh, Kunwar Bahadur Singh and Phool Singh on both the counts shall run concurrently. They are in jail and shall serve out their sentences. B. Capital Sentence Reference No. 10 of 2003 : The reference is accepted vis-a-vis Karan Singh and Kunwar Bahadur Singh, but rejected vis-a-vis Phool Singh. Before parting with the judgment we would like to point out that although the impugned judgment was impossible to assail Mr. Kamal Krishna, learned counsel for the appellants, left no stone unturned to convince us that it warranted to be set aside. Appeal partly allowed. .