Judgment ( 1. ) SINCE the aforesaid Criminal Reference and the Criminal Appeal arise out of the common impugned judgment passed by the trial Court, they are being disposed of by this common judgment. This Criminal Reference No. 1/2009, under Section 366 of the Code of Criminal Procedure, has been made by the Additional Sessions Judge, Sihora, in Judgment dated 10. 10. 2008, passed by him in Sessions Trial No. 38/2007, whereby he has convicted accused Sheikh Arif under Section 302 of the Indian Penal Code and sentenced him to death. ( 2. ) ALL the three appellants have filed Criminal Appeal No. 2311/2008 against the judgment dated 10. 10. 2008, passed by the Additional Sessions Judge, Sihora, in Sessions Trial No. 38/2007, convicting them under Sections 302 and 307/34 of the Indian Penal Code. Appellant Sheikh Arif has been sentenced to death for causing death of Sheikh Munna, Sheikh Alam and Sheikh Shahid and has also been directed to pay fine of Rs. 10,000/- on each count. He has also been sentenced to imprisonment for life with fine of Rs. 10,000/- under Section 307/34 of the Indian Penal Code. ( 3. ) APPELLANTS Sheikh Anwar and Sheikh Saleem have also been convicted under Section 302 of the Indian Penal Code on three counts and sentenced to imprisonment for life with fine of Rs. 10,000/-on each count. They have further been convicted under Section 307/34 of the Indian Penal Code and sentenced to rigorous imprisonment for 10 years with fine of Rs. 10,000/ -. ( 4. ) FACTS of the case, as alleged by the prosecution, are that accused Sheikh Arif is the son of Sheikh Munna (deceased ). Accused Sheikh Anwar is the son of accused Sheikh Arif. Another accused Sonu @ Asgar (Juvenile) is also the son of accused Sheikh Arif. Accused Sheikh Saleem is the sisters son of accused Sheikh Arif. Kaneeza Bi (injured) is the fifth or sixth wife of deceased Sheikh Munna. Sheikh Alam (deceased) was the son of Kaneeza Bi and Sheikh Munna and Sheikh Shahid (deceased) was the son of Kaneeza Bi from her former husband. Sheikh Munna, Sheikh Alam (aged about 3 years) and Sheikh Shahid are the deceased persons of the present case. ( 5. ) ACCORDING to prosecution, on 23. 10. Sheikh Alam (deceased) was the son of Kaneeza Bi and Sheikh Munna and Sheikh Shahid (deceased) was the son of Kaneeza Bi from her former husband. Sheikh Munna, Sheikh Alam (aged about 3 years) and Sheikh Shahid are the deceased persons of the present case. ( 5. ) ACCORDING to prosecution, on 23. 10. 2006, at about 2-3 p. m. Sheikh Munna (deceased), Kaneeza Bi (PW-24), Sheikh Alam (deceased) and Sheikh Shahid (deceased) went to plough their Paterawala field, situated in village Mudkuru, by their tractor. A dispute in respect of the said field existed between Sheikh Munna and his son Sheikh Arif (accused ). Accused persons armed with spear and sword reached there and Sheikh Arif asked them not to plough the field. Sheikh Munna told them that since the land was in the name of minor Sheikh Anwar and he was his Bali (guardian), he would plough the field. Sheikh Arif then assaulted him with a spear, as a result he fell down. Sheikh Saleem, Sonu and Sheikh Anwar caught hold of him and Sheikh Arif chopped of his neck by the sword. Sheikh Arif then tried to hit Kaneeza Bi by the spear, but the blow lended at her son Sheikh Alam, who also died. Thereafter, all the four accused persons caught Sheikh Shahid and assaulted him, when Kaneeja Bi tried to run away, she was also beaten. The accused persons then ran away taking the tractor of Sheikh Munna. Kaneeza Bi, in order to save herself, ran from there and went at the road. When police reached there, she narrated the incident to D. S. Thakur, A. S. I. . On the basis of information furnished by her, D. S. Thakur (PW-21) recorded Dehati Nalishi (Ex. P/35) and three Murg Reports. He sent Kaneeza Bi for the treatment and the medical examination. From the spot, he seized a spear, sword, blood stained earth, a country made bomb, slippers and broken bangles. Blood stained articles were sent for examination to Forensic Science Laboratory. On the basis of Dehati Murg Intimations, regular Murg Intimations and the first information report (Ex. P/22) were recorded at Police Station Majhauli. Dead bodies of Sheikh Munna, Sheikh Alam and Sheikh Shahid were sent for postmortem examination. ( 6. ) AFTER investigation, charge sheet against the accused persons was filed and the case was committed for trial. ( 7. On the basis of Dehati Murg Intimations, regular Murg Intimations and the first information report (Ex. P/22) were recorded at Police Station Majhauli. Dead bodies of Sheikh Munna, Sheikh Alam and Sheikh Shahid were sent for postmortem examination. ( 6. ) AFTER investigation, charge sheet against the accused persons was filed and the case was committed for trial. ( 7. ) TRIAL Court framed charges under Sections 302 and 307 read with Section 34 of the Indian Penal Code. ( 8. ) ACCUSED persons abjured their guilt and pleaded false implication due to enmity. The defence of the accused Sheikh Arif, as reflected from his statement under Section 313 of the Code of Criminal Procedure, was that Kaneeza Bi was his fathers sixth wife. She herself got his father murdered. At about 3. 00 Oclock on the same day, his son Sheikh Anwar had gone to lodge report with the police that 3-4 unknown persons were assaulting his father, but Inspector Dharmendra Singh noted it on a rough paper and asked Sheikh Anwar to come at the spot. On way when he found Kaneeza Bi on the road, he arrested Anwar. Similar defence was taken by accused Sheikh Anwar and Sheikh Saleem. ( 9. ) DURING trial, prosecution examined 25 witnesses and exhibited 47 documents. ( 10. ) ACCUSED persons, before the trial Court, though prayed to adduce defence evidence and to examine accused Sheikh Arif under Section 315 of the Code of Criminal Procedure, but did not produce any evidence. However, they exhibited 6 documents (Ex. D/1 to D/6 ). ( 11. ) TRIAL Court relying on the evidence of solitary eyewitness Kaneeza Bi (PW-24) and other circumstantial evidence held the accused persons guilty and convicted and sentenced them as mentioned earlier. ( 12. ) SHRI S. K. P. Verma, learned counsel for the accused/appellants, submitted that the trial Court committed grave error in holding the appellants guilty on the basis of evidence of solitary eyewitness Kaneeza Bi (PW-24 ). Other eyewitnesses viz. Devi Singh (PW-3), Kishan Singh (PW-4) and Murat Singh (PW-5) did not support the prosecution case. The evidence of Kaneeza Bi (PW-24) was discrepant and contradictory. She made material improvements in her evidence before the Court, therefore, she was not a reliable witness. The investigation done by Sub Inspector D. S. Thakur (PW21) was not fair and was wholly unreliable. Devi Singh (PW-3), Kishan Singh (PW-4) and Murat Singh (PW-5) did not support the prosecution case. The evidence of Kaneeza Bi (PW-24) was discrepant and contradictory. She made material improvements in her evidence before the Court, therefore, she was not a reliable witness. The investigation done by Sub Inspector D. S. Thakur (PW21) was not fair and was wholly unreliable. There had been no motive for the accused persons to kill Sheikh Munna, who happened to be the father of appellant Sheikh Arif. He also submitted that the incident had occurred in a sudden quarrel, therefore, no offence under Section 302 of the Indian Penal Code was made out and further that from the facts and circumstances of the case, the present was not a rarest of rare case in which the death penalty should have been imposed on accused Sheikh Arif. ( 13. ) ON the other hand, Shri T. K. Modh, learned Dy. Advocate General for the State, submitted that the testimony of Kaneeza Bi was wholly reliable. Even if there had been some discrepancies in her evidence, they did not discredit her from being a reliable witness, because in the occurrence she too was badly injured and had suffered grievous injuries. Her two sons and her husband had been brutally killed. In such a situation, minor discrepancies, which occurred in her testimony could not be held to be deliberate. According to him, in a case of triple murder, the investigating officer has to take care and look after many steps in the investigation at the same time, which may result in the occurrence of some mistakes and discrepancies, but no much importance can be attached to them if the evidence of investigating officer is otherwise reliable. He submitted that there was sufficient material on record to indicate that accused Sheikh Arif was annoyed and aggrieved by the interference of Sheikh Munna in the land, which stood in the name of his minor son Sheikh Anwar. He submitted that the trial Court was fully justified in convicting the appellants and imposing death penalty on Sheikh Arif for committing the brutal murders. ( 14. ) WE have heard the learned counsel for appellants and learned counsel for the State and have carefully considered the evidence, circumstances and probabilities of the case. We have also gone through the judgment under appeal with the help of both the counsel. ( 15. ( 14. ) WE have heard the learned counsel for appellants and learned counsel for the State and have carefully considered the evidence, circumstances and probabilities of the case. We have also gone through the judgment under appeal with the help of both the counsel. ( 15. ) IT is not disputed that the deceased persons viz. Sheikh Munna, Sheikh Alam and Sheikh Shahid had died homicidal deaths. Dr. C. P. Tiwari (PW-1) had performed the postmortem examinations of the dead bodies. He found following injuries on the body of Sheikh Munna: (1) Extensively lacerated wound (cut throat and neck injury ). Whole neck was cut through and through including all vital structure with muscle, nerves artery, vein and spine at the level of cervical vertebrae C2-C3. Only the head was attached with the body by posterior tendon of trepezius muscle and skin flap. Size of injury was 13x5x deep posterior up to muscle. At various places the sign of chopping also present. Margins at some places were fine and at some places irregular. (2) Lacerated wound-right anterior pectoral region 3 x 3 x Muscle deep. Margins were slightly lacerated not very fine. All injuries were ante mortem in nature. Injury No. 1 was caused by sharp edged heavy cutting object and Injury No. 2 was caused by blunt edged sharp object. In his opinion, the death was caused by respiratory and circulatory failure caused by several powerful blows on the anterior part of neck. Cutting all the vital structures of neck through and through. The postmortem report is Ex. P/1. ( 16. ) DR. C. P. Tiwari (PW-1) found following injuries on the body of Sheikh Alam son of Sheikh Munna: (1) Contusion 1x1 on right forehead. (2) Contusion 2x1 in right upper lid. Diffused swelling present. (3) Contusion just above occipital protuberence 3x2 on palpating fracture of occipital bone. Consistency of the place is fleby. (4) Contusion 3x1 1/3 on anterior part of neck over thyroid. (5) Contusion 1 x1 over medial and shaft of left clavicle bone. (6) Contusion 4x2 on the right side of jaw. All injuries were caused by hard and blunt object and were ante mortem. On internal examination, his occipital bone was found fractured and broken into three pieces. Beneath the bone, large amount of blood clot was formed forming a big haematoma. Brain was congested with laceration on the posterior part. (6) Contusion 4x2 on the right side of jaw. All injuries were caused by hard and blunt object and were ante mortem. On internal examination, his occipital bone was found fractured and broken into three pieces. Beneath the bone, large amount of blood clot was formed forming a big haematoma. Brain was congested with laceration on the posterior part. In his opinion the cause of death was acute neurogenic shock caused by heavy blow on the posterior part of skull resulting fracture of bone and acute neuro circulatory failure due to brain attack. His postmortem report is Ex. P/2. ( 17. ) ON postmortem examination of the body of Sheikh Shahid, Dr. C. P. Tiwari (PW-1) found following injuries on his body: (1) Incised wound 2 x 1 x Bone deep. Frontal bone of skull at the middle above forehead slightly curved. (2) Incised wound 2 x 1 x Bone deep oblique posterior to bregma towards left parietal bone. Sharp everted cut margins. (3) Incised wound 2x1x Bone deep, oblique, right temporal parietal region, posterior part. Cut margins sharp everted. (4) Incised wound 2 x3/4x bone deep left occipito parietal region oblique. Cut margins. (5) Contusion 5x4 on right shoulder posterior. (6) Contusion 3x2 bluish black on right triceps region. (7) Contusion 2x2 rounded bluish black just above right elbow posterior. (8) Contusion 2x1 on left arm. Middle and lateral aspect. (9) Contusion 1 x1 just above left elbow joint posterior aspect. (10)Contusion 8x4 Big Bluish Black right flank upper abdomen, slight posterior side. (11)Contusion 3x2 diffused, bluish black, posterior on right hand. Injuries No. 1,2,3 and 4 (Incised wounds) were caused by sharp cutting heavy object. Injuries No. 5,6,7,8,9,10 and 11 were caused by hard and blunt objects. All injuries were ante mortem in nature. On internal examination, one crack fracture of skull on right temporo parietal region, zigzag was seen. In his opinion, death was caused by acute neuro circulatory failure due to injury to brain. ( 18. ) DR. S. S. Thakur (PW-2), Medical Officer, Community Health Centre, Majhauli examined the injuries of injured Kaneeza Bi. He, vide his injury report Ex. P/4, found following injuries on her body: (1) One lacerated wound present on scalp over frontal region antero posterior in direction size 3x1 and bone deep. Irregular margin. (2) One contusion over right forearm at middle 1/3rd region size 4x3 transverse in position. He, vide his injury report Ex. P/4, found following injuries on her body: (1) One lacerated wound present on scalp over frontal region antero posterior in direction size 3x1 and bone deep. Irregular margin. (2) One contusion over right forearm at middle 1/3rd region size 4x3 transverse in position. Deformity and bony crepitation present. Unable to move the limb. (3) Contusion over middle 1/3rd on left hand. Size 4x3. Transverse in position. Bony crepitation present with deformity. (4) One contusion present over left wrist joint. Size 3x3. Bony crepitation present. (5) One contusion over back of left forearm. In his opinion, all the injuries were caused by hard and blunt object. ( 19. ) KANEEJA Bi (PW-24) stated that the accused persons assaulted her and to Sheikh Munna, Sheikh Alam and Sheikh Shahid by spear, sword and Lathi when they were at their Paterawala field. As a result of injuries Sheikh Munna, Sheikh Alam and Sheikh Shahid died at the spot. Investigating Officer, ASI, D. S. Thakur (PW-21) went at the spot and found the dead bodies of deceased persons lying in the field in village Mudkuru. There were injuries on their bodies. He prepared inquest memorandums Ex. P/15, Ex. P/16 and Ex. P/17 at the spot and sent the bodies for postmortem examination. From this evidence and the evidence of Dr. C. P. Tiweari (PW1), it is clearly established that Sheikh Munna, Sheikh Alam and Sheikh Shahid died homicidal deaths. Besides, it has not been disputed by the accused persons that the death of deceased had taken place in any other manner. ( 20. ) THE prosecution case rests only on the evidence of solitary eyewitness Kaneeza Bi (PW-24 ). Though the prosecution examined Devi Singh (PW-3), Kishan (PW-4) and Murat Singh (PW-5) also as eyewitnesses, but they did not support the prosecution case and totally denied their presence at the spot. Though they were declared hostile and were cross-examined by the prosecutor, but, in our opinion, their evidence was of no use for the prosecution or for the accused persons. ( 21. ) KANEEZA Bi (PW-24) stated that Sheikh Munna was her husband, Sheikh Alam and Sheikh Shahid were her sons. They had gone to their Paterawala field for sowing seeds. At about 2. ( 21. ) KANEEZA Bi (PW-24) stated that Sheikh Munna was her husband, Sheikh Alam and Sheikh Shahid were her sons. They had gone to their Paterawala field for sowing seeds. At about 2. 00 p. m. , while Sheikh Shahid was sowing seeds by the tractor, Sheikh Arif, Sheikh Anwar, Sheikh Saleem and Sonu (Juvenile) came there armed. Sheikh Anwar and Sheikh Saleem had Lathis with spear-head and Sheikh Arif had a sword. They objected by saying that they should not sow the field. When Sheikh Munna told Sheikh Arif that he was the Bali (guardian), therefore, he will sow the field, Sheikh Saleem gave a Lathi blow on the head of Sheikh Munna, due to which he fell down and Sheikh Arif chopped of his neck. Thereafter they mercilessly assaulted Sheikh Shahid by their weapons and ran after her to kill. She had child Sheikh Alam in her lap. When they assaulted her by Lathi, Sheikh Alam slipped out of her hands, then they assaulted Sheikh Alam by the Lathis with the spear head. They also assaulted her, due to which her both the hands were broken. Sheikh Arif assaulted her by the Lathi having spear head. ( 22. ) LEARNED counsel for the appellants submitted that there were many contradictions in the statement of Kaneeza Bi. She had improved over her earlier versions given in Ex. P/35, Dehati Nalishi and Ex. D/1 statement recorded under Section 161 of the Code of Criminal Procedure. Her evidence was unnatural and unreliable and since she was the sole eyewitness of the incident, her evidence was liable to be disbelieved, as she was not a wholly reliable witness. According to him, Dehati Nalishi (Ex. P/35) and other reports were made ante-timed. All the documents were fabricated by investigating officer D. S. Thakur, as Kaneeza Bi had already been sent to hospital for the treatment. He submitted that Kaneeza Bi deliberately implicated the accused persons as she knew that after the death of Sheikh Munna and the exclusion of accused Sheikh Arif and Sheikh Anwar, she alone would get the property of Sheikh Munna. He submitted that Kaneeza Bi deliberately implicated the accused persons as she knew that after the death of Sheikh Munna and the exclusion of accused Sheikh Arif and Sheikh Anwar, she alone would get the property of Sheikh Munna. He placed reliance on Budh Singh and Ors v. State of U. P.- AIR 2006 SC 2500 , wherein it has been held that when it is found that the first information report is ante-timed and ante-dated and exact time of occurrence has not been proved, injuries on the persons of eyewitness were doubtful and the evidence of other eyewitness, who are chance witnesses is not reliable and the prosecution case is not supported by the medical evidence, the acquittal of the accused persons by trial Court cannot be set aside. ( 23. ) ON perusal of the evidence of Kaneeza Bi, it is apparent that she is absolutely illiterate. On being questioned in the cross-examination about the period when she was married to deceased Sheikh Munna, she gave some discrepant answers. At one place she stated that her former husband Sabir Ali had died about 11 years back and at another place she said that he died about 8-9 years ago and she married to Sheikh Munna about 7 years back, whereas in her police statement (Ex. D/11) she mentioned that she had married to Sheikh Munna about 6 years ago. She stated that she remained as widow for about two years. Thereafter, she said that she was married to Sheikh Munna only two years after the death of Sabir Ali. The trial court made a specific note that this witness was absolutely illiterate. In our opinion, these discrepancies in her statement were not in respect of any material aspect. Learned counsel for the appellants drew our attention to para-24 of her statement where she was confronted with Dehati Nalishi Report Ex. P/35 wherein she did not mention that accused Annu and Saleem had Lathis mounted with spear heads. She also did not mention in the said report that Sheikh Arif had a sword and Sheikh Saleem assaulted Sheikh Munna with Lathi on his head. She denied of having mentioned in the said report that Sheikh Arif had assaulted Sheikh Munna by spear. Certain other contradictions pertaining to assault by Ballam (spear) to Sheikh Alam and assault on Shahid were pointed out. She denied of having mentioned in the said report that Sheikh Arif had assaulted Sheikh Munna by spear. Certain other contradictions pertaining to assault by Ballam (spear) to Sheikh Alam and assault on Shahid were pointed out. These contradictions were considered by the trial Court and were discussed in its judgment in detail. It was found that on the day of occurrence Kaneeza Bi was observing Roza (Fast ). She was badly injured in the incident. Her both hands were fractured. Her husband and two sons were mercilessly and brutally killed. In these circumstances, in our opinion, if the aforesaid inconsistencies about the manner of the assault on the victims were found in her testimony, it cannot be given much weight and her evidence cannot be discarded only on that count. It cannot be assumed that she would spare the real culprits and falsely implicate the accused persons only for the purpose of getting property of the deceased, especially when, in the attack, besides her husband, her two sons were also killed and she too was badly injured. ( 24. ) LEARNED counsel for the appellant pointed out that there was inconsistency between the evidence of Kaneeza Bi and the medical evidence. He submitted that though Kaneeza Bi stated that Annu and Saleem were armed with Lathis with spear heads, but on postmortem examination by Dr. C. P. Tiwari (PW-1), no injury on the body of child Sheikh Alam was found to have been caused by any sharp edged or pointed weapon. The doctor had found only contusions on his body. There were four incised injuries on the body of deceased Sheikh Shahid, but there were seven injuries by hard and blunt object. Similarly, Kaneeza Bi was also found to have four injuries by hard and blunt object. It is true that there appeared some inconsistency between the evidence of this witness and medical evidence, but on careful examination of her evidence, it is seen that though she stated that the accused persons had come at the spot armed with spears and sword but she did not say that the spear head Lathi was used as a piercing weapon, which is clear from Dehati Nalishi (Ex. P/35) in which it was mentioned that Tab Sheikh Arif Ne Sheikh Munna Ko Ballam Kheench Kar Mara to Wah Gir Gaya. P/35) in which it was mentioned that Tab Sheikh Arif Ne Sheikh Munna Ko Ballam Kheench Kar Mara to Wah Gir Gaya. It is also true that she denied before the Court of having mentioned this fact in Ex. P/35, but, at the same time, she explained that at that time her condition was very bad, therefore she could not say as to what she told to police. In Para-25 of her statement, she stated that she was observing Roza, she had injury on her head, her both the hands were broken and that since she was on Roza, she had spoken truth to police. She firmly stated that she was ready to tell this truth even after taking Qoran in her hands. She categorically stated that when the report was recorded there was nobody to prompt her, therefore whatever was mentioned by her in Ex. P/35 was correct and was written on her saying. The Apex Court in Bijoy Singh and another vs. State of Bihar (2002) 9 SCC 147 observed that: the fact of the state of mental agony of the person making the FIR who generally is the victim himself, if not dead, or the relations or associates of the deceased victim apparently under the shock of the occurrence reported has always to be kept in mind. In our view the evidence of Kaneeza Bi (PW-24), in the light of her suffering at the time of occurrence, appears natural, cogent, convincing and wholly reliable despite inconsistencies and discrepancies occurring in her statement. ( 25. ) THE trial Judge rightly observed that it was not possible for Kaneeza Bi to implicate the accused persons falsely with any ulterior motive. Since she mentioned the names of assailants in Dehati Nalishi (Ex. P/35) immediately after the occurrence even when she was in seriously injured condition, it was beyond imagination that in such a situation she would have exonerated the real culprits and instead implicated others. It is also significant that the trial Judge himself inspected the spear, which was seized from the spot vide memo Ex. P/18. He found that the blade of the spear was broken and its end was blunt. The blade and the stick were separate. Edges of blade and spear were also not very sharp. It is also significant that the trial Judge himself inspected the spear, which was seized from the spot vide memo Ex. P/18. He found that the blade of the spear was broken and its end was blunt. The blade and the stick were separate. Edges of blade and spear were also not very sharp. The fact that the spear head had already separated or broken from the stick is also apparent from the crime detail map Ex. P/36, prepared at the spot by the Investigating Officer. In this situation, in our opinion, the trial Court rightly held that after breaking of the blade, the spear would have become like a Lathi and therefore the inconsistency pointed out by the learned counsel for the appellants between the evidence of Kaneza Bi and the medical evidence cannot be regarded material so as to render the evidence of Kaneeza Bi unreliable. ( 26. ) PLACING reliance on Joseph vs. State of Kerala- (2003) 1 Supreme Court Cases 465, learned counsel for the appellants submitted that when the prosecution case is based on the evidence of solitary eyewitness, his evidence must be wholly reliable. Even if the witness was an injured witness and his presence at the time and place of occurrence was not doubtful, but his evidence was found in conflict with other evidence, it would be unsafe to convict the accused solely on the basis of evidence of said witness. It has been held by the Apex Court in the case of Joseph (supra) that it is permissible for a court to record and sustain a conviction on the evidence of a solitary eyewitness. But, such a course can be adopted only if the evidence tendered by such witness is cogent, reliable and in tune with probabilities and inspires implicit confidence. In the case of Joseph (supra) the trial Court did not find it safe to rely on the evidence of solitary eyewitness and after giving cogent reasons acquitted the accused, but the High Court interfered with the same in the appeal against acquittal preferred by the State. In the present case, the trial Court, after appreciating and evaluating the evidence of Kaneeza Bi came to conclusion that her evidence was cogent, reliable and inspired implicit confidence. In the present case, the trial Court, after appreciating and evaluating the evidence of Kaneeza Bi came to conclusion that her evidence was cogent, reliable and inspired implicit confidence. The facts of the case of Anil Prakash Shukla vs. Arvind Shukla- (2007) 9 SCC 513 , cited by the learned counsel for the appellants, are different. In this case the evidence of sole eyewitness was disbelieved by the High Court as the said witness was not a natural witness and he had animosity against the accused. His presence at the scene of occurrence was by a sheer chance. In the light of above circumstances, his evidence was disbelieved because of the inconsistency between the version given by him in the first information and the statement before the trial Court. In Toran Singh vs. State of Madhya Pradesh- AIR 2002 SC 2807 , the Apex Court found the conduct of the only eyewitness highly unnatural and improbable. When the father of this witness was assaulted with axe, he did not make hue and cry; he did not try to rescue him despite the fact that accused had only one hand. It was doubtful that the accused could have assaulted the deceased with his one hand causing so many injuries on the body of the deceased in the manner stated by the witness. There was delay in lodging the complaint and, apart from it, there were material contradictions and omissions in his statement. In our opinion, ratio of these precedents is not applicable to the facts of the case in hand. ( 27. ) LEARNED counsel for the appellants next submitted that the appellants were falsely implicated. They had no motive to cause death of the deceased persons, especially when Sheikh Munna was the father of accused Sheikh Arif. He argued that some other persons had assaulted the deceased persons and Sheikh Arif had sent accused Sheikh Anwar to police to inform about the said incident, but subsequently police arrested Sheikh Anwar. Iqrar (PW-7) stated that he had entered into an agreement with accused Sheikh Anwar to take his three acres of land for Rs. 1 lakh. It was agreed that when money would be returned, he would return the land. The agreement was written on stamp (Ex. P/10 ). After the agreement he ploughed the land and after some time he relinquished it. 1 lakh. It was agreed that when money would be returned, he would return the land. The agreement was written on stamp (Ex. P/10 ). After the agreement he ploughed the land and after some time he relinquished it. According to him, it was not an agreement for sale. This witness was declared hostile. On perusal of agreement Ex. P/10, it is seen that it was a document of agreement for sale in respect of the land which belonged to Sheikh Anwar in Survey No. 169 of village Patera (wrongly recorded as Paura ). Out of 1. 63 hectare, 1. 20 hectare of land was agreed to be sold. It was mentioned in the document that the land was to be sold for Rs. 1,50,000/ -. Rs. 1 lakh was received by Sheikh Anwar on 21. 3. 2005 and rest of the money was to be paid at the time of registration within one year. The possession of the land was given to Iqrar. Another witness Ashraf Khan (PW-6) stated that he purchased. 88 hectare of land from Sheikh Anwar out of survey No. 169 for rupees one lakh. A sale deed was executed in the office of Sub Registrar, Jabalpur. According to him, it was orally agreed that the possession of the land would be delivered in April 2007. He admitted that he had paid full amount to Sheikh Anwar. According to him, accused Sheikh Arif had told him that this land was given by him on lease to Tante Sarpanch. The Sale deed Ex. P/47 was executed by Sheikh Anwar, and his father Sheikh Arif had consented for the same and had also signed it. From the evidence of Ashraf Khan, it is found that the land bearing Survey No. 169 was alienated by Anwar. However, from Ex. P/46, a certified copy of the order passed by the Additional District Judge, Sihora in GA-2/03 deciding an application filed by accused Sheikh Arif under Section 7 of the Guardian and Wards Act against Sheikh Munna (deceased), it is revealed that Sheikh Anwar was minor son of Arif and Sheikh Munna, his grand father had purchased immovable properties in the name of Sheikh Anwar. Sheikh Munna was recorded as guardian of the minor sons of Sheikh Arif. Sheikh Munna was recorded as guardian of the minor sons of Sheikh Arif. Since Sheikh Arif wanted to sell out the property, which stood in the name of Sheikh Anwar, he filed the said application in the Court for his appointment as guardian in place of Sheikh Munna. The contention of Sheikh Arif in the said application was that his father Sheikh Munna was Aiyyash (debauch) and he had sold some land of Sheikh Anwar, therefore he was not a fit person to be the guardian of his minor son. By order dated 10. 7. 2006, the Additional District Judge held that the property of minor Anwar was safe in the hands of Sheikh Munna (Deceased) and the application filed by Sheikh Arif was dismissed. In view of this evidence, in our opinion, accused Sheikh Arif entertained grudge against his father Sheikh Munna, who had married Kaneeza Bi. ( 28. ) FROM the evidence of Kaneeza Bi (PW-24) also it seems that the land, which was sold to Sheikh Ashraf was the place on which Sheikh Munna was killed. Sheikh Arif had agreed to sell this land to two persons and had obtained Rs. 1 lakh. Kaneeja Bi asked Ikku (Iqrar) son of Rafiq to not to sow the land and assured him that she would pay him Rs. 1 lakh and Ikku agreed for that. Since there is absolutely no evidence on record to show that the land, which was the cause of dispute, was in possession of any other person, it cannot be presumed that anybody else had any grudge against Sheikh Munna. On the other hand, it is apparent that Sheikh Arif had obtained money by getting the disputed land sold to Ashraf. Sheikh Arif must have knowledge that the sale deed executed by Sheikh Anwar (minor) could have been set aside in the absence of consent of guardian Sheikh Munna. Since the aforesaid land was being cultivated by Kaneeza Bi and her son Sheikh Shahid, he must have grudge against them. The finding recorded by the trial Court that the accused Sheikh Arif had motive for committing the offence, therefore, is justified. ( 29. Since the aforesaid land was being cultivated by Kaneeza Bi and her son Sheikh Shahid, he must have grudge against them. The finding recorded by the trial Court that the accused Sheikh Arif had motive for committing the offence, therefore, is justified. ( 29. ) THE next criticism made by the learned counsel for the appellants is that the investigation conducted by D. S. Thakur (PW-21) was not fair; the first information report was made ante-timed; it was not possible for him to have recorded the Dehati Nalishi (Ex. P/35) at 4. 30 p. m. as according to Ex. P/4, MLC report of Kaneeza Bi, her medical examination was done at 5. 00 p. m. at the hospital. He submitted that according to prosecution the inquest proceedings of the dead bodies of Sheikh Munna, Sheikh Alam and Sheikh Shahid were conducted at about 3-3. 15 p. m. , whereas PW-21 had received a telephonic intimation about the quarrel at 3. 10 p. m. as revealed from Ex. D/4, copy of the Rojnamcha (daily diary) dated 23. 10. 2006. He further submitted that it is also doubtful that the Murg Intimation under Section 157 of the Code of Criminal Procedure was at all sent to Magistrate. Non-mentioning of the names of accused persons in the inquest memorandums and the requisitions sent to doctor for the postmortem examination also indicate that the first information report was made ante-timed. ( 30. ) IN Bijoy Singh and another vs. State of Bihar (2002) 9 SCC 147 the Apex Court observed that: sending the copy of special report to the Magistrate as required under Section 157 of the Criminal Procedure Code is the only external check on the working of the police agency, imposed by law which is required to be strictly followed. The delay in sending the copy of the FIR may by itself not render the whole of the case of the prosecution as doubtful but shall put the court on guard to find out as to whether the version as stated in the court was the same version as earlier reported in the FIR or was a result of deliberation involving some other persons who were actually not involved in the commission of the crime. Immediate sending of the report mentioned in Section 157 of the Code of Criminal Procedure is the mandate of law. Immediate sending of the report mentioned in Section 157 of the Code of Criminal Procedure is the mandate of law. Delay wherever found is required to be explained by the prosecution. If the delay is reasonably explained, no adverse inference can be drawn but failure to explain the delay would require the court to minutely examine the prosecution version for ensuring itself as to whether any innocent person has been implicated in the crime or not. ( 31. ) INVESTIGATING Officer D. S. Thakur (PW-21) testified that on 23. 10. 2006 he was Assistant Sub Inspector at Police Station Majhauli. He received an information by telephone that some quarrel was going on between Sheikh Arif and Sheikh Munna in respect of Agricultural land in village Mudkuru. On this information, he proceeded for the spot in a jeep. Near a pond, by the side of main road, he found Kaneeza Bi, who narrated the incident to him. On the aforesaid information, he recorded Dehati Murg Intimations (Ex. P/32, P/33 and Ex. P/34) and Dehati Nalishi (Ex. P/35) and obtained her thumb impression on it. Thereafter he conducted inquest proceedings and recorded memorandums (Ex. P/15, P/16 and Ex. P/17 ). He sent the aforesaid Dehati Nalishi to Police Station, Majhauli by the hands of Constable Patiram and sent the dead bodies for the postmortem examination. He seized spear and sword from the field. According to him, Ex. D/2, copy of the first information report, was sent to the concerned Magistrate. Its receipt was Ex. D/3. On perusal of Ex. D/2 and Ex. D/3, it seems that the intimation report under Section 157 of the Code of Criminal Procedure was sent to Magistrate on 24. 10. 2006 i. e. on the next day of the incident. Head Constable Ugra Sen (PW-12) testified that on 23. 10. 2006 dehati Nalishi of the incident was brought by Constable Patiram to Police Station, Majhauli. This Dehati Nalishi purported to have been recorded at 4. 30 p. m. and the time of the incident was shown to be 2-3 p. m. . It was in the handwriting of Assistant Sub Inspector D. S. Thakur. On the basis of Dehati Nalishi he had registered Crime No. 210/06 under Sections 302 and 307/34 of the Indian Penal Code by recording first information report (Ex. P/22 ). 30 p. m. and the time of the incident was shown to be 2-3 p. m. . It was in the handwriting of Assistant Sub Inspector D. S. Thakur. On the basis of Dehati Nalishi he had registered Crime No. 210/06 under Sections 302 and 307/34 of the Indian Penal Code by recording first information report (Ex. P/22 ). He had also received Dehati Murg Intimations about the death of Sheikh Munna, Sheikh Alam and Sheikh Shahid. D. S. Thakur (PW-21) though at one place in cross-examination stated that the copy of the intimation report was sent to Magistrate on 23. 10. 2006 itself, but at another place he stated that carbon copy of the first information report was sent to Magistrate on 24. 10. 2006, which was Ex. D/2. It can be assumed that the Investigating Officer, who apparently, after the occurrence, was under mental pressure and was involved in various steps of investigation pertaining to inquest, seizure, sending the dead bodies for postmortem examination etc. , under some confusion, stated that the aforesaid intimation was sent on 23. 10. 2006. However, from the record, it is established that the said intimation was sent on 24. 10. 2006. From the copy of the Rojnamcha, which was recorded at 1. 10 Oclock in the night intervening between 23/24. 10. 2006, it is revealed that the Investigating Officer remained busy till night. Under these circumstances, sending of intimation report to the Magistrate on the next day of the occurrence cannot be said to be delayed. ( 32. ) ON perusal of Dehati Nalishi (Ex. P/35) and inquest memorandums (Ex. P/15, P/16 and Ex. P/17) it appears that there were discrepancies in respect to the time of recording the aforesaid documents and no names of accused persons were mentioned therein. The time mentioned in the inquest memorandum was around 3. 00 p. m. whereas Dehati Nalishi, which was recorded on the basis of information furnished by Kaneeza Bi shows its time as 4. 30 p. m. . According to the medical examination report of Kaneeza Bi (Ex. P/4) the time of her examination was 5. 00 p. m. . The time mentioned in the inquest memorandum was around 3. 00 p. m. whereas Dehati Nalishi, which was recorded on the basis of information furnished by Kaneeza Bi shows its time as 4. 30 p. m. . According to the medical examination report of Kaneeza Bi (Ex. P/4) the time of her examination was 5. 00 p. m. . It is apparent that there are inconsistencies in respect of timings mentioned on the aforesaid documents, but, in our opinion, in a case where three murders had taken place and Kaneeza Bi, who gave the information about the occurrence was also seriously injured, the mental pressure and anxiety of the Investigating Officer should be taken into account. Other persons of staff of the police were also involved in different parts of the investigation. Investigating officer D. S. Thakur himself was a junior officer being only an Assistant Sub Inspector. In this factual situation, the mistakes in respect of timings of various documents and the mistake of non-mentioning the names of accused persons on the inquest documents were possible. No adverse inference can be drawn on account of it. Statement of the Investigating Officer was recorded after about one year, that too in parts and on different dates. The examination chief was recorded on 13. 4. 2007; cross-examination was done on 1. 9. 2007, 6. 10. 2007 and 21. 5. 2008. In tedious investigation within short span of time in respect of triple murders, the occurrence of mistake in respect of timing cannot be said to be unnatural, especially when there appears no ulterior motive or malafide on the part of Investigating Officer. In Dharmendrasinh Alias Mansing Ratansinh vs. State of Gujrat- (2002) 4 SCC 679 , the Apex Court while considering the similar questions, observed: there is definitely a contradiction about the lodging of the FIR but the effect of such contradiction or discrepancy may have to be viewed in the light of the facts and circumstances of each case. There may be cases where such a discrepancy may prove fatal to the prosecution case whereas in other cases it may not have the same effect. The consequences of such discrepancies or defective or doubtful investigation is not necessarily only one leading to discredit the main prosecution case if the prosecution evidence inspires confidence and circumstances lead to such a conclusion and the prosecution story rings true. The consequences of such discrepancies or defective or doubtful investigation is not necessarily only one leading to discredit the main prosecution case if the prosecution evidence inspires confidence and circumstances lead to such a conclusion and the prosecution story rings true. No doubt in that event it would be necessary to evaluate as to what extent such faulty investigation or discrepant statement on certain facts relating thereto, shall cause damage to the prosecution case as a whole. The trial court and the High Court have rightly placed implicit reliance upon the statement of PW 3 despite the infirmities which crept in due to careless investigation and contradiction regarding the place of lodging of the report. The chances of making some embellishment here and there in the statement are not ruled out even in cases of otherwise truthful and reliable witnesses. The concept of falsus in uno and falsus in omnibus has been discarded long ago. Therefore, in such circumstances the court may have to scrutinize the matter a bit more closely and carefully to find out as to how far and to what extent the prosecution story as a whole is demolished or it is rendered unreliable. For this purpose the statement of the witnesses will have to be considered along with other corroborating evidence and independent circumstances so as to come to a conclusion that the contradiction in the statement of a witness could be considered as an embellishment by the witness under one or the other belief or notion or it is of a nature that the whole statement of the witness becomes untrustworthy affecting the prosecution case as a whole. The same principle will apply to a faulty or tainted investigation. Other relevant facts and circumstances cannot be totally ignored altogether. While appreciating the matter, one of the relevant considerations would be that chances of false implication are totally eliminated and the prosecution story as a whole rings true and inspires confidence. In such circumstances, despite the contradictions of the defective or tainted investigation, a conviction can safely be recorded. From Ex. D/4 itself, it is apparent that a vague information in respect of quarrel between Sheikh Munna and Sheikh Arif was received at 3. 10 p. m. . On the basis of the said information, Investigating Officer had proceeded to the spot. On way he found Kaneeza Bi and recorded Dehati Nalishi (Ex. From Ex. D/4 itself, it is apparent that a vague information in respect of quarrel between Sheikh Munna and Sheikh Arif was received at 3. 10 p. m. . On the basis of the said information, Investigating Officer had proceeded to the spot. On way he found Kaneeza Bi and recorded Dehati Nalishi (Ex. P/35) on her information. Though she was in injured condition, but on her showing the spot he prepared spot map. Mere absence of her thumb impression on the spot map (Ex. P/36) cannot create doubt about the veracity of the investigation. The argument advanced by the learned counsel for the appellants that since the Investigating Officer did not take steps for obtaining the finger prints which could have been found on the weapons of the offence seized from the spot, the investigation was unfair, cannot be accepted in view of the explanation furnished by D. S. Thakur (PW-21) that he could not pay attention on this aspect, as the constable who could have taken the finger prints, was not available at that time. ( 33. ) THE investigation conducted by D. S. Thakur (PW-21) , in the facts and circumstances of the case, in our opinion, cannot be discarded altogether. Even if some mistakes are detected in various steps of investigation, merely on that basis the truthfulness of the investigation cannot be doubted. ( 34. ) THE contention made by the learned counsel for the appellants that Kaneeza Bi (PW-24) did not know that the land on which the incident occurred had already been sold out to Ashraf, therefore, she had gone to plough the same along with Sheikh Munna and Sheikh Shahid and it is quite possible that men of Tante and Ashraf might have assaulted her and the deceased persons and that accused Sheikh Anwar had gone to inform the police about the incident of assault over Sheikh Munna at about 2. 00 p. m. , in our opinion, is not acceptable. Except the statement of accused under Section 313 of the Code of Criminal Procedure, there is no material on record to support this contention. In para-20 Kaneeza Bi admitted that the said land had been sold by Sheikh Anwar to Ashraf and a case in respect of that land had been won by Sheikh Munna. Except the statement of accused under Section 313 of the Code of Criminal Procedure, there is no material on record to support this contention. In para-20 Kaneeza Bi admitted that the said land had been sold by Sheikh Anwar to Ashraf and a case in respect of that land had been won by Sheikh Munna. Accused Sheikh Arif had obtained money in respect of the said land from two persons, but she had requested Ikku and Rafiq that she would pay Rs. 1 lakh to them and they should not go on the land. According to her, they had agreed for that. She denied the suggestion of defence that accused Sheikh Anwar had given the said land on lease for one year to Tante, son of Rafiq. She denied that the land was in possession of Tante for one year. She categorically stated that being Bali (guardian) of Sheikh Anwar, Sheikh Munna had been in possession, but, since, the land was purchased by Sheikh Munna in the name of Sheikh Anwar (minor), it stood in the name of Anwar. The contention that accused Sheikh Anwar had gone to inform the police about the Mar-Peet of Sheikh Munna, does not appear natural and probable. It seems highly unnatural that accused Sheikh Anwar, who was son of Sheikh Munna, instead of saving his father and raising hue and cry to attract the attention of the people, would simply go to police station, which is said to be about 10 Kms. away from the spot to inform the police. Similarly, the statement of Sheikh Arif under Section 313 of the Code of Criminal Procedure that Kaneeza Bi herself got murdered the deceased persons, is also unacceptable. In the same incident Kaneeza Bi herself suffered severe injuries and her two sons were brutally killed. It cannot even be imagined that with a view to get the property of Sheikh Munna she would have gone to the extent of getting her sons killed and herself suffered serious injuries. ( 35. ) WE are also not in agreement with the arguments of Shri S. K. P. Verma, learned counsel appearing on behalf of appellants, that Kaneeza Bi being closely related to deceased persons was interested in the prosecution of the sons of Sheikh Munna. ( 35. ) WE are also not in agreement with the arguments of Shri S. K. P. Verma, learned counsel appearing on behalf of appellants, that Kaneeza Bi being closely related to deceased persons was interested in the prosecution of the sons of Sheikh Munna. In our opinion, merely being relative of the deceased makes out no ground to reject the testimony of Kaneeza Bi, which is otherwise found trustworthy and reliable. We also find no merit in his submission that the instant case would be a case of sudden quarrel between the two parties for the reason that there is absolutely no evidence or material on record to even remotely indicate that the deceased persons indulged in any kind of altercation or quarrel with the accused persons. ( 36. ) IN the light of what we have stated above, we find the presence of prosecution witness Kaneeza Bi (PW-24) established on the spot. Despite the inconsistencies and discrepancies to be found in her evidence, we feel that her testimony is cogent, convincing and truthful and inspires confidence to hold the accused/appellants guilty of the commission of the crime. Similar is the situation with the evidence of Investigating Officer D. S. Thakur (PW-21 ). It has been proved beyond any shadow of doubt that accused/appellant Sheikh Arif, Sheikh Anwar and Sheikh Saleem had come on the spot armed with spear and sword and had assaulted Sheikh Munna, Sheikh Alam, Sheikh Shahid and Kaneeza Bi (PW-24) with the said weapons, as a consequence of which Sheikh Munna, Sheikh Alam and Sheikh Shahid died on the spot and Kaneeza Bi (PW-24) suffered grievous injuries. The case of the prosecution cannot be discarded and none of the accused is entitled to be acquitted. Their conviction recorded by the trial Court under Section 302 and 307/34 of the Indian Penal Code are, therefore, affirmed. ( 37. ) THE question now remains is whether the appellant No. 1 Sheikh Arif has rightly been sentenced to the extreme penalty of capital punishment. Learned counsel for the appellants submitted that the trial Court committed error in not properly adverting to the mitigating circumstances existing in the case. According to him, there were no aggravating circumstances, which would have persuaded the trial Court to award death sentence to appellant Sheikh Arif. On the other hand, learned Dy. Learned counsel for the appellants submitted that the trial Court committed error in not properly adverting to the mitigating circumstances existing in the case. According to him, there were no aggravating circumstances, which would have persuaded the trial Court to award death sentence to appellant Sheikh Arif. On the other hand, learned Dy. Advocate General submitted that in the incident the main assaults to deceased persons were given by accused Sheikh Arif. He brutally chopped of the neck of his father and also killed his two step brothers, one of whom viz. Sheikh Alam was an innocent child of about 3 years age only. He justified the order of death sentence passed by the trial Court. ( 38. ) IN Allaudiniya vs. State of Bihar- AIR 1989 SC 1456 the Apex Court observed that : unless the nature of crime and the circumstances of the offender reveal that the criminal is a menace to the society and the sentence of life imprisonment would be altogether inadequate, the court ordinarily impose the lesser punishment and not the extreme punishment of death, which should be reserved for exceptional cases only and that in cases in which the crime is so brutal diabolical and revolting as to shock the collective conscience of the community. It would be permissible to award the death sentence. The mere fact that infants are killed, without more, is not sufficient to bring the case within the category of rarest of rare cases. In Dharmendrasinh alias Mansing Ratansinh vs. State of Gujrat- (2002)4 scc 679 , Supreme Court, after considering in detail number of other cases decided by itself, reiterated: Every murder is a heinous crime. Apart from personal implications, it is also a crime against the society but in every case of murder death penalty is not to be awarded. Under the present legal position, imprisonment for life is the normal rule for punishing crime of murder and sentence of death would be awarded only in the rarest of rare cases. Apart from personal implications, it is also a crime against the society but in every case of murder death penalty is not to be awarded. Under the present legal position, imprisonment for life is the normal rule for punishing crime of murder and sentence of death would be awarded only in the rarest of rare cases. A number of factors are to be taken into account namely, the motive of the crime, the manner of the assault, the impact of the crime on the society as a whole, the personality of the accused, circumstances and facts of the case as to whether the crime committed, has been committed for satisfying any kind of lust, greed or in pursuance of anti-social activity or by way of organized crime, drug trafficking or the like. Chances of inflicting the society with a similar criminal act that is to say vulnerability of the members of the society at the hands of the accused in future and ultimately, mitigating and aggravating circumstances of each case have to be considered and a balance has to be struck. ( 39. ) CONSIDERING the facts of the present case, we take note of the fact that the cause of incident was the dispute about the land, which stood in the name of Sheikh Anwar, who was minor son of accused Sheikh Arif. Sheikh munna (deceased), who was the father of Sheikh Arif had purchased the land and properties in the name of minor Sheikh Anwar. Though the lands were owned by Sheikh Anwar, but Sheikh Munna did not permit Sheikh Arif to sell out the said lands. Sheikh Arif though applied before the Court of additional Sessions Judge under Section 7 of the Guardian and Wards Act for his appointment as guardian in respect of property of his sons including sheikh Anwar in place of his father Sheikh Munna, yet the said application was dismissed by the Court holding that the property of minor was more secure and safe in the hands of Sheikh Munna. It is on record that accused sheikh Arif had tried to get the property of minor Sheikh Anwar alienated through agreement of sale dated 21. 3. 2005 and sale deed dated 19. 5. 2006 in favour of Ikrar Khan and Ashraf Khan respectively. It is on record that accused sheikh Arif had tried to get the property of minor Sheikh Anwar alienated through agreement of sale dated 21. 3. 2005 and sale deed dated 19. 5. 2006 in favour of Ikrar Khan and Ashraf Khan respectively. In view of the order passed by the court in respect of guardianship of Anwar against Sheikh Arif, he could have been compelled to return the money received by him or his son for the said transactions. It is also on record that Sheikh Munna had married fifth time to Kaneeza Bi, who already had children from her former husband and who also gave birth to Sheikh Alam after being married to Sheikh Munna. The conduct of deceased would have naturally hurt Shiekh Arif, as not only the property, but also the love and affection of Sheikh Munna towards the family was parted. Though the act of killing of Sheikh Munna, Sheikh Alam and Sheikh Shahid by accused Sheikh Arif was apparently quite brutal and heinous, yet it was not committed for satisfying any kind of lust, greed or in pursuance of any antisocial activity or by way of an organized crime. Chances of repetition of such a criminal act at his hands are also not present. He has no previous criminal record and he cannot be described as a menace to society. ( 40. ) FOR the above reasons, in our opinion, it cannot be said that the case against accused Sheikh Arif falls in the category of rarest of rare cases making him liable for the extreme penalty of death. Though his act is condemnable, however, in our view, the normal sentence of life imprisonment for the offence under Section 302 of the Indian Penal Code would meet the ends of justice. ( 41. ) IN the result, appeal of appellant Sheikh Arif is partly allowed. Death sentence awarded to him by the trial Court is set aside and instead he is sentenced to imprisonment for life under Section 302 of the Indian Penal Code on all the three counts. The conviction and sentences of other two appellants viz Sheikh Anwar and Sheikh Saleem under Section 302 of the Indian Penal Code are upheld. Death sentence awarded to him by the trial Court is set aside and instead he is sentenced to imprisonment for life under Section 302 of the Indian Penal Code on all the three counts. The conviction and sentences of other two appellants viz Sheikh Anwar and Sheikh Saleem under Section 302 of the Indian Penal Code are upheld. The sentence of imprisonment for life awarded to appellant Sheikh Arif and sentence of rigorous imprisonment for 10 years awarded to other appellants, by the trial Court, under Section 307 of the Indian Penal Code is however reduced to the rigorous imprisonment for seven years. Accordingly, appeals are partly allowed. ( 42. ) CRIMINAL Reference No. 1/09 under Section 366 of the Code of Criminal Procedure made by the learned Additional Sessions Judge, for confirmation of the death sentence of accused Sheikh Arif is rejected.