Judgment Chandramauli Kumar Prasad and Rekha Kumari JJ. 1. The above Death Reference Case No. 9 of 2003 and Criminal Appeal No. 344 of 2003 arise out of the judgment dated 30.6.2003 passed by the Presiding Officer, Fast Track Court lst, Arrah, Bhojpur in Sessions Trial No. 165 of 2001. By the said judgment the learned Trial Court has convicted appellant Anand Kumar Swarnkar u/s. 302 of the Indian Penal Code for committing the murder of Basisthamuni Prasad and his wife Dharmshila Devi and u/s. 307 of the Indian Penal Code for attempting to commit murder of the informant Birendra Prasad and has convicted appellant Brij Bihari Prasad Swarnkar u/s. 302/109 of the Indian Penal Code for abetting Anand Kumar Swarnkar to kill the above deceased persons. The Trial Court by the said judgment has sentenced Anand Kumar Swarnkar to death u/s. 302 of the Indian Penal Code subject to confirmation by this Court u/s. 366 of the Code of Criminal Procedure, 1973 and has further sentenced him to undergo rigorous imprisonment for ten years for the offence u/s. 307 of the Indian Penal Code. Appellant Brij Bihari Swarnkar has been sentenced to undergo imprisonment for life for the offence u/s. 302/109 of the Indian Penal Code. 2. Since the death reference and the appeal by both the appellants arise out of the same Sessions case, both have been heard together and this judgment would dispose of both of them. 3. Appellant Brij Bihari Prasad Swarnkar is the father of appellant Anand Kumar Swarnkar. Informant Birendra Kumar is brother of appellant Brij Bihari Prasad and deceased Basishthamuni Prasad is another brother of appellant Brij Bihari Prasad. 4. The prosecution case as described from the Fardbeyan (Ext. 5) is that on 1.6.2000 early in the morning at about 6.00 a.m. the informant, his brother Brij Bihari Prasad (appellant), Basishthamuni Prasad (deceased), their father Satya Narain Prasad, Anand Kumar Swarnkar (appellant) and other members were sleeping on the roof of their house, when on the sound of screaming the informant woke up and saw that Anand Kumar was giving blows incessantly on the head of Basishthamuni Prasad by a thick wooden Bera (wooden latch to fasten the planks of door). He raised alarm. The appellant fled down through stair case. His sister-in-law Dharmshila Devi (wife of deceased Basishthamuni Prasad) had already gone down to attend call of nature. He raised alarm. The appellant fled down through stair case. His sister-in-law Dharmshila Devi (wife of deceased Basishthamuni Prasad) had already gone down to attend call of nature. At that time she came out of the latrine and appellant Brij Bihari Prasad exhorted to kill her saying that the property of Arrah and the house stood in her name. On this Anand Kumar gave blows with Bera on Dharmshila Devi as a result of which she received injuries on head and fell down. The informant fled from the house raising hulla. Appellant Anand Kumar chased him and gave several blows by Chhura (dagger) after taking out the same from his waist on left shoulder, right rib and near chest. The people of vicinity arrived and took Basishthamuni Prasad, Dharmashila Devi and the informant to the Sadar Hospital, Arrah. There, the doctor declared Dharmshila Devi dead and in view of critical condition of Bashishthamuni Prasad, he was referred to P.M.C.H. for better treatment but on way to P.M.C.H. he died. The Ambulance carrying Bashishthamuni Prasad returned with him to Sadar Hospital, where the doctor declared him also dead. 5. It is also said in the Fardbeyan that due to the bad habits of Brij Bihari, his father had separated him after giving his share. His father had purchased a house at Arrah in the name of Dharmshila Devi and the informant and when Brij Bihari Prasad came to know of it, he started threatening to kill them and also indulged in Maar Pit for getting share in the house. Only a few days prior to this occurrence also on a Sunday, Maar pit had taken place and that this occurrence also took place for the property by the appellant Anand Kumar Swarnkar on the instigation of his father. 6. The Fardbeyan was recorded by the S.I. Yogendra Prasad Singh of Town Police Station, Arrah on 14.6.2000 at 8.30 hours in the Sadar Hospital, Arrah. On the basis of that Fardbeyan, formal F.I.R. (Ext. 7) was drawn up. The police after investigation submitted chargesheet against the appellants. 7. Appellant Anand Kumar was charged u/s. 302 of the Indian Penal Code for committing murder of Bashishthamuni Prasad and Dharmshila Devi and u/s. 307 of the Indian Penal Code for attempting to commit murder of the informant Birendra Kumar by giving dagger blows. 7) was drawn up. The police after investigation submitted chargesheet against the appellants. 7. Appellant Anand Kumar was charged u/s. 302 of the Indian Penal Code for committing murder of Bashishthamuni Prasad and Dharmshila Devi and u/s. 307 of the Indian Penal Code for attempting to commit murder of the informant Birendra Kumar by giving dagger blows. Appellant Brij Bihari Prasad was charged u/s. 302/34 of the Indian Penal Code for sharing common intention with appellant Anand Kumar in committing the above murders. 8. The appellants pleaded not guilty to the above charges. Their defence, as gathered from the suggestions given to the P.Ws., is that no such occurrence, as alleged, had taken place and the appellants are not involved in the alleged occurrence. Appellant Anand Kumar in his statement u/s. 313 of the Code of Criminal Procedure has also taken the plea that the informant had illicit relationship with Dharmshila Devi which was opposed by Bashishthamuni Prasad and due to this relationship Bashishthamuni Prasad pelted brick bats twice on his wife as a result of which she fell down and thereafter an altercation ensued between the informant and Bashishthamuni Prasad and the informant pelted brick bats on Bashishthamuni Prasad and that they (appellants) have been falsely implicated. 9. The prosecution examined in all ten witnesses to prove its case. They are P.W. 1 Biteshwar Ram, P.W. 2 Sunil Kumar, P.W. 4 Binod Kumar Ram, who claimed to have reached the place of occurrence on hulla and saw the occurrence. P.W. 3 Shankar Thakur claims to have reached the place of occurrence on hulla and heard about the occurrence. P.W. 5 Satya Narain Prasad is the father of the informant. P.W. 6 Birendra Prasad is the informant, P.W. 7 is Dr. Ram Raj Ram, Medical Officer who had conducted the post mortem examination on the dead bodies. P.W.8 is Dr. Surendra Kumar Prasad who had examined the informant in Sadar Hospital, Arrah. P.W. 9 Ranjit Kumar Singh is the S.I. who had investigated the case and P.W. 10 Yogendra Prasad Singh is the S.I. who had recorded the Fardbeyan and prepared the inquest report (Ext. 6) of deceased Dharmshila Devi and also the inquest report (Ext. 6/1) of deceased Bashishthamuni Prasad. 10. No witness has been examined by the appellants in their defence. 11. 6) of deceased Dharmshila Devi and also the inquest report (Ext. 6/1) of deceased Bashishthamuni Prasad. 10. No witness has been examined by the appellants in their defence. 11. The learned Trial Court after considering the evidence on record convicted the appellants and sentenced them as aforesaid. 12. The point for determination for this Court is whether the learned Trial Court was justified in convicting the appellants and whether the sentence of death passed against appellant Anand Kumar is fit to be confirmed and the other sentences passed against the appellants are proper. 13. Learned counsel for the appellants submitted that the witnesses examined by the prosecution are not trustworthy. Their evidence is at variance with the medical evidence. This is also not a rarest of rare case and the sentence of death is not tenable. 14. In order to appreciate the above submissions of the learned counsel, I have gone through the evidence of the witnesses. 15. P.W. 6 Birendra Prasad, the informant, has deposed that in the morning of 14.6.2000 he was sleeping on the roof of his house. His father (P.W. 5), brother Bashishthamuni Prasad (deceased), his wife Dharmshila Devi (deceased), eldest brother Brij Bihari Prasad (appellant) were also with him. Suddenly at 6.00 a.m. he woke up on hearing the sound of screaming and saw that appellant Anand Kumar was giving incessant blows with a thick Bera on the head of Bashishthamuni Prasad and appellant Brij Bihari Prasad was instigating him. He raised alarm. On this witnesses Biteshwar Ram (P.W. 1), Binod Kumar Ram (P.W. 4), Sunil Kumar (P.W. 2), Shankar Thakur (P.W. 3) came on the roof. Appellant Anand Kumar, in the meantime, started giving dagger blows on the head of Bashishthamuni Prasad and then fled down through stairs along with his father. He has further stated that just then Dharmshila Devi came out of latrine situate in the courtyard. On seeing her appellant Brij Bihari Prasad instigated Anand Kumar to kill her saying that the property of Arrah is also in her name. Anand Kumar struck on the had of Dharmshila Devi with the Bera. She fell down. Anand Kumar then gave her dagger blows on her head. His further evidence is that on seeing the assault he fled from the house. Anand Kumar struck on the had of Dharmshila Devi with the Bera. She fell down. Anand Kumar then gave her dagger blows on her head. His further evidence is that on seeing the assault he fled from the house. Appellant Anand Kumar chased him and caught hold of him just outside the house and gave dagger blows on left shoulder blade, right rib and right side of heart. His father and other witnesses came running and saved him. 16. The witnesses has also stated that all the three injured were taken on a jeep to Sadar Hospital, where on examination, Dharmshila Devi was declared dead and as the condition of Bashishthamuni Prasad was serious, he was referred to P.M.C.H. and on the way to P.M.C.H., he died and the Government Ambulance carrying the injured returned to Sadar Hospital, Arrah, where Bashishthamuni Prasad was also declared dead. He (witness) was treated in Sadar Hospital and the S.I. of Police recorded his Fardbeyan in the Sadar Hospital. 17. This witness has stated regarding the motive of occurrence that appellant Brij Bihari Prasad had adopted bad habits. He was thus separated from the family by giving his share in the property. There is a house registered in the name of Dharmshila Devi (deceased), Bashishthamuni Prasad (deceased) and himself (witness) at Arrah and appellant Brij Bihari Prasad always quarreled with them for share in the said house and threatened to kill them. About 10 days prior to this occurrence also, he had quarreled with them for this and that the instant occurrence took place as a result of the above dispute. 18. P.W. 5, father of the informant, has also stated that he was sleeping on the roof on 14.6.2000 at 6.00 a.m. and on hulla woke up and saw that appellant Brij Bihari Prasad had dagger and appellant Anand Kumar had Bera and appellant Anand Kumar assaulted repeatedly on the head of Bashishthamuni Prasad and appellant Brij Bihari Prasad exhorted to kill and gave dagger to Anand Kumar and Anand Kumar gave dagger blows to Bashishthamuni Prasad. He has further stated that Dharmshila Devi had gone to bath room on the ground floor and the appellants got down from the roof and Brij Bihari Prasad asked to kill her saying that the house of Arrah is in her name. He has further stated that Dharmshila Devi had gone to bath room on the ground floor and the appellants got down from the roof and Brij Bihari Prasad asked to kill her saying that the house of Arrah is in her name. Anand Kumar then assaulted her with the Bera repeatedly and she fell down and then appellant Anand Kumar assaulted her with dagger. His evidence also is that at this time Birendra Prasad started fleeing and Anand Kumar chased him and gave three dagger blows. In the meantime, the villagers came and they took the three injured to Arrah Sadar Hospital and that Dharmshila Devi and Bashishthamuni Prasad died of the injuries. He has also stated that because of dispute regarding property, the occurrence took place and that the appellants wanted that he should transfer the property in their names. 19. P.W. 1 has stated that his house is adjacent to the house of the informant intervened by a road and on the alleged date at 6.0 a.m., on hearing hulla, he went to the roof of the house of the informant and saw appellant Anand Kumar assaulting Bashishthamuni Prasad on head repeatedly with wooden Bera. Then the appellants went down and on the orders of appellants Brij Bihari Prasad, Anand Kumar assaulted Dharmshila Devi on head by Bera and appellant Brij Bihari Prasad assaulted Dharmshila Devi with dagger. His evidence also is that Anand Kumar chased Birendra Prasad (informant and inflicted dagger blows on him on chest, rib and abdomen. 20. P.W. 2 Sunil Kumar, who has a shop adjacent to the house of Satya Narayan Prasad, has also stated that on hulla he went to the roof of the P.O. house from his shop and saw the occurrence. According to him Anand Kumar who had dagger and Bera assaulted Bashishthamuni Prasad on head and then on the order of Brij Bihari Prasad appellant Anand Kumar assaulted Dharmshila Devi with dagger and Bera on head. He has also stated that Anand Kumar chased Birendra Prasad and gave 3-4 dagger blows to him. 21. According to P.W. 4, who his shop 20 meter away from the P.O. house, has stated that he sleeps in the shop and on hulla he went to the roof of the house of Satya Narayan Prasad and saw the occurrence. He has also stated that Anand Kumar chased Birendra Prasad and gave 3-4 dagger blows to him. 21. According to P.W. 4, who his shop 20 meter away from the P.O. house, has stated that he sleeps in the shop and on hulla he went to the roof of the house of Satya Narayan Prasad and saw the occurrence. According to him also Anand Kumar assaulted Bashishthamuni Prasad on roof with dagger and Bera and appellant Brij Bihari Prasad instigated him to assault and then on the instigation of Brij Bihari Prasad, appellant Anand Kumar assaulted Dharmshila Devi with dagger and Bera and thereafter Anand Kumar chased Birendra Prasad and assaulted him with dagger 3-4 times on chest and abdomen. 22. According to P.W. 3 on the alleged day at 6.00 a.m. he had gone to attend the call of nature and on hulla went to the house of Satya Narain Prasad and saw many people gathered there and from there he learnt that appellant Anand Kumar assaulted Bashishthamuni Prasad, Dharmshila Devi and Birendra Prasad and fled away. 23. Thus, from the evidence of the above witnesses, it appears that they have supported the prosecution case and corroborated each other. 24. Among the above witnesses, P.W. 6 though is the informant himself and is an interested witness, there is nothing in his evidence to disbelieve his testimony. The Fardbeyan (Ext. 5) corroborates his evidence in material particulars. The Fardbeyan was recorded promptly only after two and a half hours of the occurrence. Therefore, there was no chance of concoction in it. Being inmate of the family and injured himself, he was the most competent witness of the case. It has been suggested to him that the appellants were not involved in the occurrence but he has denied the suggestions. The appellants are brother and newphew of the witness and, hence, it is not expected that the witness would falsely implicate them and leave the real culprits. 25. In his statement u/s. 313 of the Code of Criminal Procedure the appellant has stated that this witness had illicit relationship with Dharmshila Devi and when Dharmshila Devi confessed about it, Bashishthamuni Prasad assaulted her with bricks and then the informant assaulted Bashishthamuni Prasad with bricks. But no such suggestion has been given to this witness. Now witness has also been examined by the appellant to prove it. But no such suggestion has been given to this witness. Now witness has also been examined by the appellant to prove it. This defence also does not explain the injuries on the informant. So, by no stretch of imagination, it may be said that this witness falsely implicated the appellants for the above reason. 26. P.W. 5 is also an inmate of the family and so is a competent witness. He is father, grand father of the appellants. So, it is not expected that he would falsely implicate the appellants. It has been suggested to him that after his wifes death, he had kept his sister-in-law which was opposed by the deceased persons, but he has denied the suggestion and from this it cannot be inferred that this witness had any hand in the above murders. The witness, of course, has stated that appellant Brij Bihari Prasad had dagger with him which he gave to his son which is not corroborated by any evidence but this contradiction is minor and does not affect the testimony of this witness as a whole. 27. P.Ws. 1, 2 and 4 are neighbours of the informant. Therefore, there was occasion for them to reach the place of occurrence. Their names, of course, are not mentioned in the Fardbeyan but that is no ground to discard their testimony. Their evidence shows that they had on hulla gone to the roof of the house of the informant. P.W. 5, has stated that before they used to go to sleep in the night they used to lock the main gate of his house. But he has subsequently in clear words stated that he regularly comes down at 4.00 a.m. and opens the main gate and on that date also he had unlocked the main gate. Therefore, these witnesses had the opportunity to go to the roof of the P.O. house. The evidence of these witnesses also shows that their statements were recorded on the date of occurrence itself and their appears to be no contradiction in their evidence in Court and their statements before the I.O. These witnesses, of course, have been cross examined in respect of their statements before the I.O. to show that they were not eye witnesses to the occurrence before the I.O. but nothing could be elicited from their cross examination in this regard. In order to contradict the evidence of a witness with his previous statement, as provided u/s. 145 of the Indian Evidence Act his attention must be drawn to those parts of the previous statements which are intended to be contradicted. But in this case, there has not been compliance of the provision of Section 145 of the Evidence Act. Therefore, it cannot be said that though they have given eye witness account of the occurrence in evidence before the Court, they were not eye witnesses before the I.O. P.W. 1 indeed has stated that appellant Brij Bihari Prasad had also assaulted Dharmshila Devi which no P.W. has stated, but this is not a material contradiction and does not discredit the witness. But as these witnesses are not inmates of the house, even if it be assumed that they actually did not reach the place of occurrence at the time of occurrence, the evidence of P.Ws. 5 and 6 is sufficient to prove that the occurrence took place in the manner as alleged and the appellants were responsible for the assaults. As regards P.W. 3, he is a hearsay witness and his evidence, hence, is not of much importance. 28. It may, however, be mentioned here that though the evidence of the P.Ws. is that both the deceased persons were assaulted by dagger also whereas in the Fardbeyan there is no whisper that any of the deceased had received any dagger blow and, therefore, there is some improvement in, the prosecution case as narrated in Court from the case narrated in the F.I.R. which is the earliest version of the case but only for this improvement the entire evidence of the witnesses cannot be discarded. As the deceased had received incised looking injuries and appellant Anand Kumar had dagger with him, it is quite possible that to meet the situation, the assault by dagger had been introduced. But this improvement does not change the basic structure of the case that appellant Anand Kumar assaulted both the deceased in the manner as alleged at the instigation of his father which resulted in their death and, therefore, does not go to the root of the prosecution case and affect the prosecution case or the evidence of the witnesses that the appellants were authors of the murder of the two persons. 29. 29. P.W. 8 has deposed that on 14.6.2000 he was posted at Arrah Sadar Hospital and on that date at 6.30 P.M. he examined Birendra Kumar (informant) and found the following injuries on his person: (i) One 1" x 1/3" x 1/3" incised wound on right side of chest. (ii) One 1/4" x 1/4" x 3" incised wound near right nipple medial side. He has opined that the injuries were caused by sharp cutting weapons and within six hours of examination. 30 The evidence of this doctor, therefore, corroborates the testimony of the above witnesses that the informant was assaulted by dagger. Though there is some discrepancy in the age of injury given and the time of assault, the opinion of the doctor is not decisive and from this it cannot be held that the injuries were not caused at the time of the alleged occurrence. 31. P.W. 7, the other doctor has deposed that on 14.6.2000 he was posted at Sadar Hospital, Arrah and on that date at 12.30 P.M. he held the post mortem examination on the dead body of Bashishthamuni Prasad and found the following ante mortem injuries: External. Ecchymosis right eye lid (upper and lower), stitched wound right temporal parietal region 3" x 1 /10" x scalp deep incised looking wound. Bleeding right ear. On dissection: Scalp - fracture of right parietal and temporal bone, brain matter of parietal and temporal lacerated and torn and cavity full of blood. Thorax-Right chamber of heart full, left chamber empty, both lungs pale. Abdomen and stomach contained about 350 ml. of semi digested food material. Liver, spleen and kidney-all pale. Urinary bladder contained about 250 ml. of urine. The doctor has opined that the death was caused within 12 hours and due to damage of vital organ like brain and massive bleeding and the injuries were caused by sharp cutting weapon such as Chhura. 32. He has further stated that on the same date at 12.05 P.M. he had held post mortem examination on the dead body of Dharmshila Devi and found the following ante mortem injuries: External: (1) incised wound over the back of scalp: (i) 2" x 1/4" x scalp deep. (ii) 1" x 1/4" x scalp deep. (iii) 2/3" x 1/4" x scalp deep. (2) Incised wound over right arm near elbow 3" x 1/6" x skin deep. (3) Bleeding from the right ear. (ii) 1" x 1/4" x scalp deep. (iii) 2/3" x 1/4" x scalp deep. (2) Incised wound over right arm near elbow 3" x 1/6" x skin deep. (3) Bleeding from the right ear. On dissection: 1. Scalpfracture of occipital bone, brain matter of occipital lobe lacerated and torn with blood clot. 2. AbdomenStomach contained 300 ml. semi digested food material. 3. Liver, Spleen and kidneypale. 4. Urinary bladder contained 250 ml. of urine. 5. Uteroid--Non gravic. 6. Chest cavityRight chamber of heart full, left empty. 7. Both lungs found pale. The doctor has opined that time elapsed since death was within 12 hours and that cause of death was damage of vital organs like brain and massive bleeding caused by sharp cutting weapon. 33 The evidence of this doctor also corroborates the testimony of the above witnesses that the deceased died of the injuries inflicted on head. 34. Learned counsel for the appellants has submitted that there is variance between the ocular evidence and the medical evidence inasmuch as according to the witnesses Bashishthamuni Prasad was given several blows but the doctor found only one injury and that according to the witnesses the deceased were given several Bera blows also but all the injuries were found by the doctor to be incised. 35. Though according to the doctor Bashishthamuni Prasad had received one injury whereas according to the informant and his father he was given several blows but this is a simple exaggeration on the part of the witnesses and for this minor discrepancy, the entire evidence of the witnesses cannot be discarded. 36. Then so far the weapon used, according to the Modis Medical Jurisprudence 22nd Edition, page 342occasionally wounds produced by blunt weapon, the skin splits and may look like incised wound when inflicted on tense structures covering the bones such as scalp, eye brow etc. 37. The Supreme Court in the case of State of Rajasthan V/s. Laxman Singh and others, 2002 10 SCC 65 has also observed that incised wound may also be caused by blunt weapon. In the case of Suresh V/s. State of U.P., 1981 2 SCC 509 the Supreme Court has also held that skin, just above a hard surface, can break on a severe blow and give the appearance of an incised wound. 38. In the case of Suresh V/s. State of U.P., 1981 2 SCC 509 the Supreme Court has also held that skin, just above a hard surface, can break on a severe blow and give the appearance of an incised wound. 38. In this case also the blows were given on scalp and other hard surface of the body and, therefore, it cannot be ruled out that they were caused by a wooden Bera. So, the ocular evidence and the medical evidence are reconcilable and are not at variance. Besides this in the case of Anil Rai V/s. State of Bihar, 2001 7 SCC 318 , the Supreme Court has observed that reliable and direct evidence should not be rejected on hypothetical medical evidence and where medical evidence shows two probabilities, the one consistent with the reliable and direct evidence should be accepted. 39. Therefore, in view of the Modis Medical Jurisprudence and the above decisions of the Supreme Court, it may be accepted that the injuries on the two deceased persons were actually caused by wooden Bera as stated by the witnesses and that, in fact, there is no discrepancy between the medical and ocular evidence. 40. P.W. 9, the I.O., has stated that on 16.4.2000 he was posted as Incharge Gajrajganj O.P. and on that date at 7.00 a.m. he received information about Marr pit and making Sanha entry went towards market for verification and learnt that Maar pit had taken place among the brothers in the family of Satya Narain Prasad and, hence, he went there but as the injured were taken to the hospital, he reached there. The S.I. Yogendra Prasad Singh (P.W. 10) had, in the meantime, recorded the Fardbeyan and the inquest reports. he has stated that he forwarded the Fardbeyan for lodging formal F.I.R. and started investigation and proceeded for the place of occurrence. 41. According to this witness the place of occurrence was the roof and courtyard of the house of the informant situated at Gajrajganj which was a brick built roofed house. On the roof of the house, he found a plastic mosquito net, bed sheet, three pillows, all besmeared with blood. He seized the bed sheet and one pillow. On the ground floor he also found stains of blood and broken pieces of glass bangles in front of the latrine in the courtyard. He seized them and prepared seizure list (Ext. On the roof of the house, he found a plastic mosquito net, bed sheet, three pillows, all besmeared with blood. He seized the bed sheet and one pillow. On the ground floor he also found stains of blood and broken pieces of glass bangles in front of the latrine in the courtyard. He seized them and prepared seizure list (Ext. 8 of all the above articles). 42. This witness has stated that he arrested appellant Anand Kumar from Mithila More near Sadar Hospital, Arrah and had already arrested appellant Brij Bihari Prasad from his house and that both the appellants confessed their guilt and he recorded their confessional statements and on the basis of the confessional statement of the appellant Anand Kumar, he recovered the blood stained dagger (Material Ext. II) kept hidden by him in a bush situated on the Chhotaki Sasaram Bandh and the wooden Bern (material Ext. I) from near the latrine and prepared seizure lists (Ext. 8/1 & 8/2). 43. The evidence of the I.O., hence, also corroborates the testimony of the witness that the occurrence had taken place on the roof of the house as well as in the courtyard of the informant but though according to this witness he had recorded the confessional statements of the appellants and had seized and recovered the weapons on the statement of the appellant Anand Kumar, the confessional statement has not been marked as exhibit and so, we do not give importance to this evidence of the witness. But as clearly stated his evidence lends corroboration that the occurrence had taken place at the place as alleged by the prosecution. 44. The evidence of P.Ws. 5 and 6 also shows that P.W. 5 had separated appellant Brij Bihari Prasad because of his bad habits and as there was a house registered in the name of the two deceased and the informant, the appellant used to quarrel for share and give threatening to kill and, in fact, only a few days prior to the occurrence they had resorted to Mar pit. Therefore, there was motive for the occurrence. The evidence of the witnesses is also that appellant Brij Bihari Prasad ordered to kill Dharmshila Devi as the house was also in her name. 45. The motive alleged, therefore, is also proved. 46. Therefore, there was motive for the occurrence. The evidence of the witnesses is also that appellant Brij Bihari Prasad ordered to kill Dharmshila Devi as the house was also in her name. 45. The motive alleged, therefore, is also proved. 46. Hence, considering all the facts, circumstances and evidence on record, we find that the witnesses are, on the whole, reliable and their evidence is corroborated by the medical evidence and the evidence of I.O. and the evidence of the witnesses proved beyond reasonable doubts that on the alleged date at about 6.00 a.m. appellant Anand Kumar assaulted Bashishthamuni Prasad and his wife Dharmshila Devi on vital parts of the body as a result of which both of them soon died and the appellant Brij Bihari Prasad instigated appellant Anand Kumar to kill them. It is also proved that appellant Anand Kumar assaulted the informant Birendra Prasad with dagger on vital parts, obviously with the intention of causing his death. 47. The learned Trial Court, therefore, was justified in convicting appellant Anand Kumar for the offences under Sections 302 and 307 of the Indian Penal Code. As regards appellant Brij Bihari Prasad, he has been convicted u/s. 302/109 of the Indian Penal Code but he was charged u/s. 302/34 of the Indian Penal Code and the evidence also shows that he had shared the common intention with appellant Anand Kumar to kill the deceased and participated in the occurrence by instigating him. Therefore, it was propert for the learned Trial Court to convict him u/s. 302/34 instead of Section 302/109 of the Indian Penal Code. Accordingly, this appellant is convicted u/s. 302/34 of the Indian Penal Code in place of Section 302/109 of the Indian Penal Code, under which he was convicted. 48. A regards the sentence, learned counsel for the appellants submitted that appellants Anand Kumar was juvenile at the time of occurrence and so, this appellant cannot be sentenced to any punishment. But it appears that the appellant had filed a petition in this regard in the Trial Court and the learned Trial Court by order dated 19.9.2002 had held that the appellant was not a juvenile and it appears that the higher Court was not moved against that order and so, the matter has attained finality. 49. But it appears that the appellant had filed a petition in this regard in the Trial Court and the learned Trial Court by order dated 19.9.2002 had held that the appellant was not a juvenile and it appears that the higher Court was not moved against that order and so, the matter has attained finality. 49. The learned Trial Court has sentenced the appellant Anand Kumar to death for the offence u/s. 302 of the Indian Penal Code holding that this is one of the rarest of the rare case. 50. In this regard the decision of the Supreme Court in the case of Rajendra Prasad V/s. State of U.P., AIR 1979 SC 916 on the point of death sentence may be referred to. In that case the Supreme Court has observed that a family feud, an altercation, a sudden passion although attended with extraordinary cruelty, young and malliable age, reasonable prospect of reformation and absence of any conclusive circumstance that the assailant is a habitual murderer or given to chronic violence--these catena of circumstances bearing on the offender call for lesser sentence. 51. In the case of Prakash Dhawal Khairnar V/s. State of Maharashtra, 2002 2 SCC 35 which is applicable to the facts of this case, the accused gunned down his own brother, brothers family members (4 persons) and his mother. The accused was working as a Water Analyser (Senior Scientific Assistant) and had no criminal tendency. The murders were committed as his brother was not partitioning the alleged joint property. The Supreme Court observed that no doubt it is a heinous and brutal crime but at the same time it will be difficult to hold that it is rarest of rare cases. It is also difficult to hold that the appellant is a menace to the society and there is no reason to believe that he cannot be reformed or rehabilitated or that he is likely to continue criminal acts of violence as would constitute a continuing threat to the society. Accordingly, the Supreme Court set aside the sentence of death imposed on the accused. 52. In this case also though murders of two members of the family were committed and an attempt was made to commit the third murder, the offences were committed for the alleged shares of the appellant in the property. Accordingly, the Supreme Court set aside the sentence of death imposed on the accused. 52. In this case also though murders of two members of the family were committed and an attempt was made to commit the third murder, the offences were committed for the alleged shares of the appellant in the property. Appellant Anand Kumar is also young man and there is nothing to show that he has a criminal tendency and cannot be reformed. It is also difficult to hold that he is a menace to the society and is likelty to continue criminal acts of violence constituting a continuing threat to the society. 53. Therefore, in view of the above decision, the learned Trial Court was not justified in holding the case as rarest of the rare cases and awarding death sentence to appellant Anand Kumar Swarnkar. The sentence of death passed against Anand Kumar Swarnkar is not fit for confirmation. Accordingly the sentence of death is set aside and it is directed that appellant Anand Kumar Swarnkar would suffer imprisonment for life u/s. 302 of the Indian Penal Code. The sentence of rigorous imprisonment for ten years u/s. 307 of the Indian Penal Code passed against this appellant is proper and maintained. These sentences against this appellant would run concurrently. The sentence passed against appellant Brij Bihari Prasad Swarnkar is also proper but the same, however, would be deemed to have been passed for the offence u/s. 302/34 of the Indian Penal Code. 54. The above Death Reference is accordingly answered and the appeal is dismissed with the above modification and in the manner indicated above. Appellant Brij Bihari Prasad Swarnkar is directed to surrender in the Trial Court forthwith to serve out the sentence. The Trial Court would also take necessary steps for taking the appellant in custody to serve out the sentence.