JUDGEMENT Mridula Mishra, J. 1. The criminal reference for confirmation of death sentence as referred under Section 366 of the Code of Criminal Procedure, 1973, has been heard analogous with Criminal Appeal No. 930 of 2010, preferred by sole Appellant, against the judgment dated 16th July, 2010 and order of sentence dated 19th July, 2010, passed by Additional Sessions Judge, Fast Track Court No. I, Lakhisarai in Sessions Trial No. 561 of 2000, whereby the Appellant has been convicted under Section 302 of the Indian Penal Code and sentenced to death and fine of Rs. 50,000, for conviction under Section 27 of the Arms Act, he has been sentenced R.I. for five years and fine of Rs. 5,000. 2. The incident, with regard to which Halsi P.S. Case No. 2 of 2000 was instituted under Section 302/34 of the Indian penal Code and 27 of the Arms Act, is based on the fardbeyan of Yogendra Singh, recorded at 4 P.M. on 1st January, 2000 at Ramgarh Chowk by the Officer Incharge of Halsi Police Station, for an occurrence which took place at 2.30 P.M. on the same day at Ramgarh Chowk. Informant Yogendra Singh (P.W.2) was coming from Lakhisarai market on a bicycle and reached Ramgarh Chowk at about 2.30 P.M. He saw 10-15 persons assaulting some persons near three storied building of Vijay Yadav (Appellant). He parked his bicycle, went towards place of occurrence and saw Vijay Yadav armed with rifle, Kampany Yadav, Padarath Yadav, Brijnandan Yadav and two nephews of Vijay Yadav, armed with lathi, brutally assaulting his nephew Pintu Kumar, son-in-law, Sunil Kumar and one villager Dipak Kumar. There were other 15-20 persons, who were also enhancing help to the Accused persons. The Accused persons were uttering that since these three persons are members of criminal gang of Thepari Singh, as such they should be killed. The Accused persons tied rope around the neck of Pintu and Sunil Kumar. Dipak Kumar fell on his knee and started begging for his life, in response to this Vijay Yadav fired on Dipak. Vijay Yadav also fired on Pintu and Sunil and all three died at the spot. On direction of Vijay Yadav one pistol was put in the Jackets pocket of Sunil Kumar, some Wads and one live cartridge was also placed near the dead body of deceased, in order to create evidence against them. 3. Vijay Yadav also fired on Pintu and Sunil and all three died at the spot. On direction of Vijay Yadav one pistol was put in the Jackets pocket of Sunil Kumar, some Wads and one live cartridge was also placed near the dead body of deceased, in order to create evidence against them. 3. The fardbeyan of Yogendra Singh was recorded by Dhananjay Kumar (P.W.6) Officer-in-charge of Halsi Police Station at about 4 P.M. on 1st January, 2000 at Ranmgarh Chowk, which is the place of occurrence. The formal First Information Report of Halsi P.S. Case No. 2 of 2000 was instituted on the same day at 6 P.M. against seven named Accused and 15-20 unknown Accused persons. Investigation of the case started immediately, by I.O. (P.W. 6). He prepared inquest report of all three deceased persons (Exhs. 1,1/1 and ½) and these inquest reports were signed by Jai Kisun Singh and Baiju Singh (P.W. 2). Dead bodies were brought to the police Station and on the next day i.e. 2nd January, 2000 these were sent for postmortem. Dead body was received by doctors. P.W. 8, P.W. 9 and P.W. 10, who conducted postmortem on the dead body of these deceased. Dr. Krishna Mohan Purbey (P.W. 9), conducted postmortem on the dead body of Sunil Kumar, Dr. Rakesh Kumar Sinha (P.W. 8), conducted post mortem on the dead body of deceased Deepak Kumar and Dr. Ramesh Chandra Jha, (P.W. 10) conducted postmortem on the dead body of Pintu Kumar. The Investigating Officer (P.W. 6) interrogated witnesses and finally submitted chargesheet on 20th May, 2000 against all Accused persons, namely, Brijnandan Yadav, Kamapany Yadav, Padarath Yadav, Vijay Yadav, Sudhir Yadav and Sujit Yadav. Chargesheet was submitted against Vijay Yadav, Sujit Yadav, and Sudhir Yadav showing them absconder. Sujit Yadav and Sudhir Yadav appeared on 29th August, 2000 and took plea of juvenility, as such their case was referred to Juvenile Justice Board. Appellant Vijay Yadav remained absconder for eight years and he was arrested on 9lh February, 2008. Cognizance for offence was taken by the Magistrate and case of all Accused was committed to the Court of Sessions vide Sessions Case No. 327 of 2000. Since Vijay Yadav was absconding, the trial Court issued permanent warrant of arrest against him and also issued process for attachment. Cognizance for offence was taken by the Magistrate and case of all Accused was committed to the Court of Sessions vide Sessions Case No. 327 of 2000. Since Vijay Yadav was absconding, the trial Court issued permanent warrant of arrest against him and also issued process for attachment. The trial Judge, separated his trial from Sessions Trial No. 327 of 2000 and passed an order that whatever evidence will come forward against Accused facing trial, will also be relevant for absconding Accused under Section 299 of the Code of Criminal Procedure. 4. A counter case was filed by Vijay Yadav vide Halsi P.S. Case No. 3 of 2000 alleging that three Accused i.e. Pintu, Sunil and Deepak, members of Thepari Singhs Criminal gang, came and started indiscriminate firing on Vijay Yadav. In order to save his life and in exercise of right of private defence, he fired on them and all three died, receiving the fire arm injury. Halsi P.S. Case No. 3 of 2000 was investigated and found false by the Investigating Officer. First Information Report of Halsi P.S. Case No. 3 of 2000 was brought as evidence and marked as Exh. A in Sessions Trial No. 327 of 2000 to show that there was an admission of shooting by Vijay Yadav and despite this fact that Halsi P.S. Case No. 3 of 2000 was found false, admission of Vijay Yadav that he fired on three deceased could not be wiped out. 5. The separated Sessions Trial No. 561 of 2000 started against Vijay Yadav on 9th February, 2008 after his arrest. In the separated trial, charge was framed against Vijay Yadav on 27th April, 2008. 6. The prosecution in order to prove charges framed against sole Accused Vijay Yadav, examined 10 witnesses. Baiju Yadav (P.W. 1) Yogendra Singh (P.W. 2), Uma Singh (P.W. 3), Naresh Singh (P.W. 4) and Permanand Singh (P.W. 5) were examined as eyewitnesses and they fully supported the case of the prosecution. P.W. 7 Dinesh Yadav was declared hostile as he did not support the case of the prosecution. The Investigating Officer Dhananjay Kumar Singh (P.W. 6) Dr. Rakesh Kumar Sinha (P.W. 8), Dr. Krishna Mohan Purbey (P.W. 9) and Dr. Ramesh Chandra Jha (P.W. 10) were the official witness, who investigated the case, submitted chargesheet and conducted post mortem on the dead body of the deceased and submitted postmortem report. 7. The Investigating Officer Dhananjay Kumar Singh (P.W. 6) Dr. Rakesh Kumar Sinha (P.W. 8), Dr. Krishna Mohan Purbey (P.W. 9) and Dr. Ramesh Chandra Jha (P.W. 10) were the official witness, who investigated the case, submitted chargesheet and conducted post mortem on the dead body of the deceased and submitted postmortem report. 7. All witnesses examined as eyewitnesses were residents of village Nandnama, which was also village of all three deceased persons as well as P.W. 2, the Informant. 8. Baiju Singh (P.W.1) reached Ramgarh Chowk at about 2.30 P.M. on 1st January, 2000, when coming from village Sarmera and going to his village Nandnama. He alighted at Ramgarh Chowk from a Tata Mexi vehicle and saw 10-15 persons standing near the house of Vijay Yadav. He heard sound of assault and outcry of persons being assaulted. He went near the house of Vijay Yadav and saw that his villagers Deepak, Pintu and Pintus brother-in-law Sunil were being assaulted with lathi by Kampany Yadav, Sujit Yadav and Sudhir Yadav. Vijay Yadav armed with rifle was standing there and watching them being assaulted. He directed other Accused to kill Deepak, Pintu and Sunit as they belonged to village Nandnama. Kampany Yadav and others tied rope around the neck of Pintu, Dipak and Sunil and started tightening it. These victims, started begging for their lives, on which Vijay Yadav fired at each of them, one by one. Vijay Yadav directed to put one country made revolver in the jakets pocket of Sunil and three wads and one life cartridge near his dead body. P.W. 1 admitted, in his cross-examination, that his father Brahmdeo Singh and Jai Kishun Singh, father of Yogendra Singh (P.W. 2) were brothers. Yogendra (P.W. 2), Birendra and Devendra Singh are brothers and deceased Pintu was son of Devendra and deceased Sunil was his son-in-law. In this way, P.W. 1, P.W. 2 and two deceased Pintu Singh and Sunil were closely related to each other. P.W. 1 has deposed that after the occurrence he stayed for one hour at the place of occurrence and thereafter proceeded for his village home on foot. P.W. 1 has disclosed that village Nandnama is situated at a distance of two and half kilometres from Ramgarh Chowk. P.W. 1 has deposed that after the occurrence he stayed for one hour at the place of occurrence and thereafter proceeded for his village home on foot. P.W. 1 has disclosed that village Nandnama is situated at a distance of two and half kilometres from Ramgarh Chowk. He after reaching village, gave information regarding occurrence to his uncle Jai Kisun Singh (father of Informant) and both of them, along with some other villagers, again came to the place of occurrence at Ramgarh Chowk. Other villagers who had also came with them were not examined as witness. He reached at the place of occurrence at about 4.30 or 4.45 P.M., but till then sun has not set. Besides P.W. 1, at the place of occurrence Permanand Singh (P.W. 5), Bachu Singh (not examined since dead) Naresh Singh (P.W. 4) and Yogendra Singh (P.W. 2) were also present. The Investigating Officer has already reached there and was doing some writing work. P.W. 1 and Jai Kisun Singh both put their signature on some papers but as he did not read it, could not know what was that paper. He came back to his village thereafter. He was interrogated by the I.O. No other witnesses were interrogated by the I.O. in his presence. P.W. 1 has admitted in Para 2 and Para 7 of his evidence that there were more than 100 people at Ramgarh Chowk, when he alighted from vehicle and nearabout 40-50 persons when he came back to the place of occurrence from his village. He has denied the suggestion that deceased persons were members of Thepari Singhs gang, and had come to kill Vijay Yadav, who fired on them to save his life and for that Halsi P.S. Case No. 3 of 2000 had been instituted. 9. P.W. 2 is the Informant of the case. He came at Ramgarh Chowk nearabout 2.30 P.M., while coming back from Lakhisarai. He heard crying and shouting of Pintu, Sunil and Deepak, who were being assaulted by Kampany Yadav and others. He saw Vijay Yadav armed with rifle, commanding his associates to hang three victims, as they were resident of village Nandnama. Kampany Yadav and other Accused persons tied rope around their neck. Deepak, Sunil and Pintu were begging for their life and is retaliation Vijay Yadav fired from his rifle on all three of them. He saw Vijay Yadav armed with rifle, commanding his associates to hang three victims, as they were resident of village Nandnama. Kampany Yadav and other Accused persons tied rope around their neck. Deepak, Sunil and Pintu were begging for their life and is retaliation Vijay Yadav fired from his rifle on all three of them. Vijay Yadav ordered Kampany Yadav to bring a pistol and put it in the Jacket of Sunil. The occurrence was witnessed by Baiju Singh (P.W. 1), Uma Singh (P.W. 3), Permanend Singh (P.W. 5), Naresh Singh (P.W. 4) and Bachu Singh (dead). P.W. 2 saw that a" three persons, who were shot by Vijay Yadav died at the place of occurrence. Police came at the place of occurrence and his fardbeyan was recorded, on which he put his signature. P.W. 2 has admitted that the deceased Pintu was his nephew and son of his brother Devendra. He saw more than 100 persons at Ramgarh Chowk, who were not known to him. Those persons, left the place of occurrence, prior to arrival of Investigating Officer. When Investigating Officer came at the place of occurrence, sun has not set. The Investigating Officer recorded his fardbeyan, after verification of dead body of three deceased persons. P.W. 2 has stated that he had not given any information to his father about the occurrence, but he came at the place of occurrence and put his signature on inquest report. In order to justify his presence at the place of occurrence, P.W. 2 has stated that he had gone to purchase diesel from Lakhisarai Bazar but could not purchase due to insufficient money and a hole in the container. He has given full detail of the occurrence right from the assault on the deceased by other Accused persons, tying of rope around the neck of the deceased and firing made on them by Vijay Yadav. He has denied the suggestion that deceased persons were members of the criminal gang of Thepari Singh, and had come to fire upon Vijay Yadav, who in exercise of his right of private defence, fired on them from his licensed rifle and in this regard Halsi P.S. Case No. 3 of 2000 was also instituted by him. He has denied the suggestion that deceased persons were members of the criminal gang of Thepari Singh, and had come to fire upon Vijay Yadav, who in exercise of his right of private defence, fired on them from his licensed rifle and in this regard Halsi P.S. Case No. 3 of 2000 was also instituted by him. P.W. 2 has denied the suggestion that the original FIR on which Jai Kisun Singh and Baiju Singh had put their signature as attesting witness was torn and in connivance with the Investigating Officer another First Information Report was drawn, which is the FIR of Halsi P.S. Case No. 2 of 2000. 10. Uma Singh (P.W. 3) had reached at Ramgarh Chowk at 2.30 P.M. on 1st January, 2000 while coming from village Aure and going to his village Nandnama. He alighted from a bus at Ramgarh Chowk and saw 10-15 persons standing near the house of Vijay Yadav. He came forward and saw Deepak, Pintu and Sunil being assaulted by Kampany Yadav with lathi and bamboo. Vijay Yadav was standing there with rifle and ordering his people to kill them. The Accused persons tied rope around the neck of all three victims who were begging for their lives. Vijay Yadav fired on all three of them, one by one and they died there at the place of occurrence itself. P.W. 3 has stated that out of fear, he went towards the southern direction. Thereafter the Investigating Officer came at the place of occurrence and he was also interrogated. Dead bodies were brought at Lakhisarai P.S. He also came at the police station and remained there for whole of night and in the next morning went with the dead bodies when forwarded for postmortem. He has also stated that at the place of occurrence Baiju (P.W. 1) Jai Kisun Singh (not examined) Yogendra Singh (P.W. 2), Permanend (P.W. 5) and Bachhu were present and they were also interrogated by I.O. As per the statement of P.W, 3, Deepak and Pintu had received two shots and three firings were made at Sunil. He has admitted that the deceased Deepak was his nephew. He has denied the suggestion regarding falsely deposing in the case. He has admitted that the deceased Deepak was his nephew. He has denied the suggestion regarding falsely deposing in the case. He has also denied that three deceased were members of the criminal gang of Thepari Singh, who with an intention to kill had made an attack upon Vijay Yadav and in exercise of his right of private defence Vijay Yadav fired on them and in this regard Halsi P.S. Case No. 3 of 2000 had been instituted. 11. Naresh Singh (P.W. 4) has come at Ramgarh Chowk at about 2 0 clock, while coming from Salonachak and going to his home at Nandnama. He saw a crowd and went near it. He saw Deepak Singh, Pintu Singh and Sunil Singh being assaulted by Vijay Yadav, Kampany Yadav and others with Lathi. Vijay Yadav was armed with rifle. Ropes were tied around the neck of all three persons and thereafter they were shot by Vijay Yadav from his rifle. He has admitted that deceased Sunil was his brother-in-law. He has also Admitted that the occurrence was witnessed by Jai Kishun Singh, Yogi Singh, Bachchu Singh, Baiju Singh, Uma Singh and Paro Singh. He has given details of his travelling from Salonachak to Ramgarh Chowk in Para 3 of his deposition. P.W. 4 has stated that his statement was not recorded by the Investigating Officer and for the first time he has come to depose in the Court. However, deposition of P.W. 4 in Para 4 has completely been contradicted by the I.O., who has stated that Naresh Singh (P.W. 4) was interrogated by him. This witness has stated that deceased Deepak was brother of Thepari Singh and deceased Sunilwas the son-in-law of Yogi Singh, who is the Informant of the case. 12. Permanand Singh (P.W. 5) has admitted in Para 14 of his deposition that deceased Deepak was his nephew. Davesh Singh alias Thepari Singh was own brother of deceased Deepak. P.W. 5 was at Ramgarh Chowk on 1st January, 2000 at about 2.30 P.M. as he had gone to make some purchase. In his presence Sunil, Pintu and Deepak came on a motorcycle at Ramgarh Chowk and were taking betel from the shop of Chaurasia. Vijay Yadav came there from his house. He called his people and asked them to drag all three persons upto his house. In his presence Sunil, Pintu and Deepak came on a motorcycle at Ramgarh Chowk and were taking betel from the shop of Chaurasia. Vijay Yadav came there from his house. He called his people and asked them to drag all three persons upto his house. These three persons were assaulted, dragged and brought near the house of Vijay Yadav. They started begging for their lives but Vijay Yadav fired at Deepak, Sunil and Pintu. All of them died at the place of occurrence itself. In Para 17 of his deposition P.W. 5 has stated that when he came at Ramgarh Chowk, none of his villagers were there but within half an hour of his arrival, P.W. 2 came there. I.O. reached at Ramgarh Chowk, after half an hour of arrival of P.W. 2. This witness has also stated in his deposition that at the time of occurrence there were no shops at his village and shops were at Ramgarh Chowk. He has admitted that near about 100 peoples were present at the place of occurrence, when the occurrence took place. He has also denied the suggestion regarding the right of private defence claimed by Vijay Yadav, due to which he claimed to have fired on three deceased persons. 13. The Investigating Officer Dhananjay Kumar (P.W. 6) was posted as Officer In-charge of Halsi P.S. on 1st January, 2000. He had recorded the fardbeyan of Yogendra Singh (P.W. 2) on 1st January, 2000 at 4 P.M. at the place of occurrence which is Ramgarh Chowk, on which Permanand Singh (P.W. 5) and Naresh Singh (P.W. 4) had put their signature as attesting witnesses. Place of occurrence as per the deposition of the I.O. was a vacant land adjacent to three storied building of Vijay Yadav at Ramgarh Chowk. Three dead bodies were found by him at the vacant space in front of the house of Vijay Yadav. He found blood on the soil at the place of occurrence. He also found one live cartridge, three wads and one country made pistol kept in the jackets pocket of deceased Sunil. People, present at P.O. disclosed that Vijay Yadav was taking liquor at the first floor of his house, prior to the occurrence. He found blood on the soil at the place of occurrence. He also found one live cartridge, three wads and one country made pistol kept in the jackets pocket of deceased Sunil. People, present at P.O. disclosed that Vijay Yadav was taking liquor at the first floor of his house, prior to the occurrence. I.O. (P.W. 6) found one chowki, two chairs, three empty bottles of liquor, 2-3 glasses, one packet of cigarette and match boxes at first floor of the house of Vijay Yadav. He did not find any sign of firing either on wall or at any place of Vijay Yadavs first floor house which could have indicated any firing made by deceased persons on Vijay Yadav.. There was no sign of firing present there, whatever sign of firing he found, that was at vacant land in front of the house of Vijay Yadav. Persons present near the place of occurrence, at the time of investigation, disclosed that three deceased persons came on a black coloured Rajdoot motorcycle Bearing No. BP-IL-5486 and were taking betel from the betel shop of one Chourasia. Vijay Yadav also came there and asked his associates to drag them upto the place near his house. The associates of Vijay Yadav, assaulted and dragged all three deceased upto his newly constructed house. All three persons were assaulted and finally shot dead near the house of Vijay Yadav. The motorcycle on which the deceased persons had come, was seized by the I.O. and a seizure list was prepared, on which Suryadeo Mistri and Lakhan Sah (not examined) had put their signature. P.W. 6 had inspected first floor of the house of Vijay Yadav, but did not find any mark of firing, which could have supported the plea taken by Vijay Yadav regarding right of private defence. He prepared inquest report of all three deceased persons, on which Jai Kishun Singh and Baiju Singh (P.W.2) had put their signature. He also issued command for sending dead bodies for post mortem on 2nd January, 2000. On 5th January, 2000 he interrogated P.W. 1, P.W. 3, P.W. 4 Bachu Singh, (now dead) and some persons at Ramgarh Chowk. Persons examined at Ramgarh Chowk have not been examined as witness. P.W. 5 was examined by him on 21st June, 2000. He also issued command for sending dead bodies for post mortem on 2nd January, 2000. On 5th January, 2000 he interrogated P.W. 1, P.W. 3, P.W. 4 Bachu Singh, (now dead) and some persons at Ramgarh Chowk. Persons examined at Ramgarh Chowk have not been examined as witness. P.W. 5 was examined by him on 21st June, 2000. P.W. 6 in Para 23 of his deposition has stated that Halsi P.S. Case No. 3 of 2000 instituted by Vijay Yadav was also investigated by him and his claim that firing was made by him in exercise of his right of private defence was found false. He has denied the suggestion that investigation was not done properly by him and the Accused persons were chargesheeted by him in connivance with the prosecution witnesses. 14. P.Ws. 8, 9 and 10 had conducted post mortem on the dead body of the three deceased persons. Dr. Rakesh Kumar P.W. 8 had conducted postmortem on deceased Pintu kumar and found four ante mortem injuries. Three injuries were caused by fire arms and one injury by hard and blunt substance. Dr. Krishna Mohan Purbey P.W. 9 had conducted postmortem on the person of Sunil Kumar and found three fire arm injuries. He did not find any charring on the site of the injuries. According to P.W. 9 firing might have been made from a distance of 4 feet. Dr. Ramesh Chandra Jha P.W. 10 had conducted postmortem on the dead body of Deepak Kumar. As per the opinion of P.W. 10 injuries found on the dead body were caused by hard and blunt substance as well as by fire arm and cause of death was both asphixia as well as fire arm injuries. 15. From the ordersheet of the trial Court, it transpires that sufficient time was allowed to the Accused for examining defence witnesses but not a single defence witness was produced for examination. Appellants statement was recorded under Section 313 Cr.PC, but he refused to sign his statement recorded under Section 313 of the Code of Criminal Procedure, as such his Advocate Shri Janardan Prasad Mahto put his signature on it. 16. The Appellant was represented by two learned Senior Counsels, Shri Kanhiya Prasad Singh and Shri Shakil Ahmad Khan. Appellants statement was recorded under Section 313 Cr.PC, but he refused to sign his statement recorded under Section 313 of the Code of Criminal Procedure, as such his Advocate Shri Janardan Prasad Mahto put his signature on it. 16. The Appellant was represented by two learned Senior Counsels, Shri Kanhiya Prasad Singh and Shri Shakil Ahmad Khan. Counsels appearing for the Appellant have assailed impugned judgment of conviction stating that the Trial Court has completely misjudged the quality of prosecution evidence, before awarding highest punishment of death to the Appellant. Prosecution was never interested in examining independent and trustworthy witnesses. There were eight chargesheet witnesses, out of which only five have been examined. One of the chargesheet witness, Bachhu Singh died before his deposition, as such he was not examined, but Jaikisun Singh, Monikant Singh, Ramakant Singh and Kedar Singh whose names have been mentioned by P.W. 1 in his evidence and who were also chargesheeted witnesses were also not examined. The Prosecution has not shown any reason for their non examination. P.W. 1, P.W. 2, P.W. 3, P.W. 4 and P.W. 5 who have been examined as eyewitnesses, are resident of village Nandnama. All three deceased also belonged to village Nandnama. There was no natural reason for presence of these witnesses at Ramgarh Chowk at the time of occurrence. Evidence of all these witnesses show that distance of village Nandmana from Ramgarh Chowk is 2 to 3 Kms. The date of occurrence was 1st January, i.e. first day of the year. This is not the case of prosecution that no other person than these villagers was present when the occurrence took place. On the other hand P.W. 1, P.W. 2 and P.W. 3 have admitted that more than 100 people were present at Ramgarh Chowk. The question is why only such witnesses were examined for supporting prosecution version, who are closely related and interested witnesses. In reply to the submission, counsel for the State has submitted that P.W. 2 in his deposition has stated that there were more than hundred person present at the time of occurrence, but those persons were unknown to him and they left the place of occurrence before the arrival of I.O. Everyone present at the place of occurrence could not have been examined, due to their reluctance. Nowadays people usually do not show any willingness to assist the prosecution, in order to bring wrong doers within the fold of law. Most of the time the reason being fear of criminals. In the present case also no one present at the place of occurrence willingly came forward to support the case of the prosecution, considering the involvement of person like Appellant, whose criminality and dare devil attitude is apparent from his action. In the broad day light at the busy market place, in presence of several persons, he shot three persons at a time. This was the reason that no persons than the witnesses who are co-villagers and family members came forward to depose. The prosecution evidence can not be discarded for this reason only, when other evidence, like medical evidence and the evidence of I.O. fully corroborates the deposition of the witnesses examined as eyewitness. We find substance in the submission of the State counsel. Simply because the witnesses are related to the deceased and their co-villagers, their evidence can not be ignored, when corroborated by other evidence. 17. Counsel for the Appellants has also questioned the genuineness of fardbeyan Exh. X and FIR, Exh. X/1. It has been submitted that it does not seem that the FIR has been instituted on the basis of real and original fardbeyan. The evidence of P.W. 2 in Para 2 indicates that the fardbeyan was singed by Jaikisun Singh and Baijju Singh (P.W. 1) as attesting witnesses. The present fardbeyan, Exh. X bears signature of Parmanand Singh (P.W. 5) and Naresh Singh, (P.W. 4) as attesting witness. This show that the original and real fardbeyan which was signed by Jaikisun Singh and Baijju Singh was replaced by the present fardbeyan Exh. X, for the reason that it did not disclose a substantial offence. P.W. 1 has also admitted in Para 6 of his deposition that on the document written by I.O. he and Jaikisun Singh had signed but the FIR and the fardbeyan Exh. X and Exh. X/1 do not bear the signature of Baijju Singh, (P.W. 1) and Jaikisun Singh. Counsel for the Appellant submits that it creates a doubt regarding the genuineness of the fardbeyan. This was a reason that a suggestion was given to P.W. 2 that original fardbeyan was torn and replaced by a present fardbeyan, (Exh. X). X and Exh. X/1 do not bear the signature of Baijju Singh, (P.W. 1) and Jaikisun Singh. Counsel for the Appellant submits that it creates a doubt regarding the genuineness of the fardbeyan. This was a reason that a suggestion was given to P.W. 2 that original fardbeyan was torn and replaced by a present fardbeyan, (Exh. X). It has also been submitted that the conviction of the Appellant on the basis of a prosecution case, which is concocted, imaginary and fabricated, is illegal and fit to be set aside. Counsel appearing for the State has contradicted the submission of the Appellant giving reference of the evidence of P.W. 1, P.W. 2 and the Investigating Officer, P.W. 6. P.W. 1 has stated that he and Jaikisun Singh both had put their signature on some papers but he could not know that which was that document as he did not read it. P.W. 2 in Para 10 of his deposition has specified his statement in Para 2 by stating that on inquest report I.O. had taken his signature and signature of his father Jaikisun Singh and Baiju Singh. This has been corroborated in paragraph two of the deposition of I.O. P.W. 6 that he prepared inquest reports of all three deceased persons which were signed by Jaikisun Singh and Baiju Singh. This is further corroborated by the inquest report of the deceased persons (Exh. 1, 1/1,½). On all the inquest reports there are signatures of Jaikisun Singh and Baiju Singh. There is no substance in the submission of the counsel that original fardbeyan was replaced by Exh. X and on the basis of a concocted story, FIR was registered. The submission made by the Appellants counsel that entire criminal proceeding is tainted and illegal has no substance. The evidence of P.W. 1, P.W. 2, P.W. 6, supported by inquest reports, only indicate that on the basis of original and genuine fardbeyan recorded by the 10, FIR was instituted and there is no deliberation and concoction in the prosecution story. 18. Other contention of the Appellants counsel is that deposition of P.W. 1 should not have been taken into consideration by the Trial Court for proving the case of prosecution. P.W. 1 has claimed that he alighted from Tata Maxy at Ramgarh Chowk at about 2.30 P.M. and saw his villagers being assaulted by Kampany Yadav and others. 18. Other contention of the Appellants counsel is that deposition of P.W. 1 should not have been taken into consideration by the Trial Court for proving the case of prosecution. P.W. 1 has claimed that he alighted from Tata Maxy at Ramgarh Chowk at about 2.30 P.M. and saw his villagers being assaulted by Kampany Yadav and others. Finally he saw his villagers being shot by Vijay Yadav with his rifle. P.W. 1 in his deposition has stated that he remained at the place of occurrence for one hour and thereafter left for his village Nandnama.. He walked upto his village, which is at a distance of 2 to 3 Kms and again came back with Jaikisun Singh and other villagers. He has claimed to have reached again at the place of occurrence at 4.30-4.45 P.M. i.e. before setting of the sun. The claim of P.W. 1 that he witnessed the occurrence at 2.30 and again at 4.30, before arrival of the I.O. he reached at the place of occurrence, travelling six kilometres distance within such a short time, is unbelievable, and humanly not possible. So far his presence at the time of preparation of inquest report is concerned, is proved from his signature on the inquest report. But his presence at 2.30 p.m. at the P,0. at the time of occurrence is doubtful, considering the fact that within one hour he could not have travelled six kilometres, without using any vehicle. 19. Presence of P.W. 1 at the time of occurrence has been admitted by the other witnesses as well as the I.O. (P.W. 6). P.W. 1 is an inquest witness and his signature is on the inquest report. So far travelling of six kilometres within one hour is concerned; it depends upon person to person. Villagers who are in habit of walking can cover the distance. This can not be a reason for disbelieving the evidence of P.W. 1 specially when P.W. 1 wan not cross examined on this point that he could not have covered six kilometres, distance within an hour. 20. Counsel for the Appellants further submitted that as per the case of prosecution, the place of occurrence is at Ramgarh Chowk, which is situated at a distance of 2-2 ½ - 3 kilometre from village Nandnama. This has been admitted by almost all prosecution witnesses. 20. Counsel for the Appellants further submitted that as per the case of prosecution, the place of occurrence is at Ramgarh Chowk, which is situated at a distance of 2-2 ½ - 3 kilometre from village Nandnama. This has been admitted by almost all prosecution witnesses. Considering the distance in between the village Nandnama and Ramgarh Chowk, it seems difficult to believe that in normal circumstances, at a time, so many villagers will remain present at the place of occurrence, unless they have any specific reason for it. None of the witnesses examined by prosecution had any genuine, natural and convincing reason for their presence at the place of occurrence. They all are chance witnesses and their deposition have to be scrutinised very cautiously and strictly. P.W. 1 claimed to have reached Ramgarh Chowk on the date of occurrence at 2.30 P.M., while coming from village Sarmera and going to village Nandnama. He has desposed that he alighted at Ramgarh Chowk from a Tata Maxy vehicle and saw the occurrence. His statement has been contradicted by the Investigating Officer in Para 17 of his deposition that no such statement has been made by P.W. 1 before the I.O. P.W. 2 has claimed that he came at Ramgarh Chowk at the time of occurrence, while returning from Lakhisarai. We had gone to Lakhisarai for purchasing Diesel. The presence of P.W. 2 can not be believed considering his own admission that he did not purchase diesel due to insufficiency of money and finding a leakage in container. A person who has specially gone to purchase the diesel, is presumed to carry at least sufficient money and a proper container for it. The admission of P.W. 2, show that in fact he did not have any reason for his presence at the place of occurrence, to witness the occurree. P.W. 3 was going from village Aurey and reached Ramgarh Chowk at 2.30 p.m. i.e. at the time of occurrence. His statement has been contradicted by the I.O. in paragraph 18 of his deposition, stating that P.W. 3. had not made any such statement before him. So far P.W. 4 is concerned, he has deposed that his statement was not recorded by the Investigating Officer and for the first time he has come to depose in the Court. His statement has been contradicted by the I.O. in paragraph 18 of his deposition, stating that P.W. 3. had not made any such statement before him. So far P.W. 4 is concerned, he has deposed that his statement was not recorded by the Investigating Officer and for the first time he has come to depose in the Court. The submission of the counsel for the Appellant is that when evidence of prosecution witness is compared with the evidence of P.W. 6, the Investigating Officer, it transpires that none of them had made such statement before the I.O. and have developed the story of their presence at P.O. during the trial. However, on comparison of the evidence of witness with evidence of P.W. 6, there is no contradiction that P.W. 1 and P.W. 3 had stated about their coming at the place of occurrence. P.W. 1 had simply not mentioned about Tata Maxy and contradiction in the evidence of P.W. 3 was on some other point and not on the point that he arrived at the place of occurrence at 2.30 P.M. So far P.W. 2 is concerned; his presence at the place of occurrence has been corroborated by P.W. 5, whose presence at the place of occurrence has not been questioned by the counsels appearing for the Appellant. P.W. 5 has only been considered as a natural witness by counsels appearing for the Appellant. Even though, these witnesses are chance witnesses, there is no discrepancy in their evidence. They all have good reason for their presence at the place of occurrence and it can not be disbelieved. 21. Counsel for the Appellant has further submitted that the evidence of prosecution witnesses suffer from serious infirmity. P.W. 1 has claimed that he covered 6 kilometres distance within one hour, which is humanly not possible. P.W. 2 in Para 10 has stated that all witnesses remained present at Halsi Police Station for the whole night till next morning but none of them were interrogated on 1st January, 2000. The question arises that why the witnesses were not interrogated by the I.O. on the same day and examined on the next day, as evident from the deposition of P.W. 6 in Para 2 of his deposition. The question arises that why the witnesses were not interrogated by the I.O. on the same day and examined on the next day, as evident from the deposition of P.W. 6 in Para 2 of his deposition. P.W. 5 was interrogated on 26th January, 2000, if at all witnesses would have been present at the place of occurrence; there was no reason for interrogating them on the next day or after such a long delay. 22. Counsel appearing for the State and the Informant in reply to the submission have stated that there is no infirmity in the evidence of any of the witnesses. They were not interrogated by the IO on the date of occurrence itself and there are good reason for it. The occurrence had taken place at 2.30 P.M. The I.O. arrived at the place of occurrence at 4.30 P.M. He recorded fardbeyan, prepared seizure list, and inquest reports of deceased. By that time it must have become dark. He also had to make arrangement for bringing dead bodies to the Police Station and for sending dead bodies for postmortem. The dead bodies were sent for postmortem in the morning of 2nd January, 2000 as evident from the evidence of P.Ws. 8, 9 and 10 and the postmortem report. It was very natural that I.O. could not interrogate witnesses on the same night and witnesses were interrogated on 2nd January, 2000. We find no infirmity in the evidence of witnesses, simply because they were interrogated by the I.O. on the next day of the occurrence or later on. 23. Counsel for the Appellant has stated that all prosecution witnesses are closely related and interested witnesses. P.W. 1, P.W. 2 are closely related with deceased Pintu and Sunil. P.W. 1 is the son of Brahamdeo, own brother of Jaikisun Singh. Deceased Pintu is the nephew of the Informant, son of his brother Devendra Singh. Sunil is the son in law of Devendra Singh. P.W. 5, Parmanand Singh is the uncle of deceased Dipak. In this way, no other witness, except closely related persons of the deceased have been examined as eyewitnesses in this case. All these witnesses being chance witnesses as well as highly interested witnesses, their evidence need to be scrutinized in a stricter manner. P.W. 5, Parmanand Singh is the uncle of deceased Dipak. In this way, no other witness, except closely related persons of the deceased have been examined as eyewitnesses in this case. All these witnesses being chance witnesses as well as highly interested witnesses, their evidence need to be scrutinized in a stricter manner. Their evidence unless fully proved on the touch stone of genuineness of their presence at the place of occurrence, should not have been believed. Counsel for the State submits that presence of all these witnesses is proved from the fact that before arrival of Investigating Officer, they were present at the place of occurrence. The evidence of P.W. 1 and 2 shows that the Investigating Officer, P.W. 6 reached at the place of occurrence within half an hour of the occurrence. There was no reason to presume that the witnesses who have been examined by the prosecution have not witnessed the occurrence and falsely deposed. 24. Counsel for the Appellant has also submitted that the deposition of witnesses regarding the manner of occurrence has not been proved by the medical evidence. This indicates that in fact they have not witnessed the occurrence. All these witnesses have stated that three deceased were assaulted by Lathi by Kampany Yadav and others. Rope was put around their neck and it was tightened. Vijay Yadav finally fired at each of them. The manner of occurrence as disclosed in the prosecution story and in the deposition of witnesses is not corroborated by the medial evidence. There was no sign of dragging on the person of deceased and no injury caused by hard blunt substance. Doctors, conducting post mortem did not find any injury caused due to tightening of the rope around the neck of the deceased. Postmortem report revealed only injury which found on the person of deceased, being injury caused by fire arms. It has been submitted by the counsel for the Appellant that it is well settled that graver the offence, stricter should be the proof. In the present case, stricter proof is lacking, which only indicates that prosecution has not been able to prove its case. We find that the submission made by the Appellants counsel is not correct. The postmortem report and the inquest report fully corroborated the manner of occurrence as disclosed in the evidence of the witnesses. In the present case, stricter proof is lacking, which only indicates that prosecution has not been able to prove its case. We find that the submission made by the Appellants counsel is not correct. The postmortem report and the inquest report fully corroborated the manner of occurrence as disclosed in the evidence of the witnesses. The inquest report of Dipak Kumar indicates that there was black sign on his neck which seems to be caused by tightening of rope. Similar injury is indicated in the inquest report of Pintu Kumar. In the post-report of Sunil Kumar Injury No. (iii) is one wound lacerated 3/4 X 1/2" X bone deep lateral to left sygomatic prominence caused by hard and blunt substance. In the opinion of the Doctor one of the cause of death was asphyxia, due to forceful pressure over the neck. Injury No. (i) on the person of deceased Dipak Kumar, as per the opinion of the Doctor was caused by hard and blunt substance and Injury No. 2 by fire arms. Injury No. (v) found on the person of Pintu Kumar was contusion over the anterior aspect of the neck ½" X 4". In the opinion of the Doctor Injury No. (v) was caused by hard and blunt substance. We find that the manner of occurrence, as disclosed in the FIR has completely been corroborated by the postmortem report and the evidence of the Doctors, who conducted postmortem on the dead body of the deceased. 25. Counsel for the State has submitted that there may be some minor discrepancies in the deposition of the witnesses due to various reason such as the place from which they have witnessed the occurrence and the way they have perceived the occurrence. On account of such minor discrepancies, entire prosecution case can not be disbelieved. Specially in a case in which three persons have been murdered in the broad day light by Appellant, in presence of several persons, in front of his house, in a most cruel and diminish manner, counsel for the State has placed reliance upon a judgment of the Supreme Court in the case of Syed Ibrahim v. State of A.P. (2007) 1 SCC (Cri) 34. 26. This fact is completely proved that all three deceased were shot by Vijay Yadav, as per his own admission in the FIR of Halsi P.S. Case No. 3 of 2000. 26. This fact is completely proved that all three deceased were shot by Vijay Yadav, as per his own admission in the FIR of Halsi P.S. Case No. 3 of 2000. FIR of Halsi P.S. Case of 3 of 2000 was instituted by Vijay Yadav himself, admitting firing on the deceased persons by him in exercise of right of private defence. This case was investigated and found to be false as apparent from the evidence of P.W. 6. The claim of Vijay Yadav relating to his right of private defence was found to be false, and final form was submitted in Halsi P.S. Case No. 3 of 2000. Despite submission of final form, disbelieving claim of Vijay Yadav regarding his right of private defence, admission of Vijay Yadav that he fired on three deceased persons can not be denied by him. FIR of Halsi P. S. Case No. 3 of 2000 was brought as evidence in Sessions Trail No. 327 of 2000 and marked as Exh. A. The Sessions Judge who tried Sessions Trial No. 327 of 2000, while separating the trial of Vijay Yadav from trial of other Accused persons as he absconded, has passed order on 20th May, 2000 that whatever evidence will come forward against Accused facing trial, will also be relevant for absconding Accused under Section 299 Cr.PC. In this way Exh. A, though not brought on record of this trial, will be relevant for the purposes of this trial also. Suggestion has also been given by the defence to all prosecution witnesses regarding institution of Halsi P. S. Case No. 3 of 2000, this also amounts an admission on the part of the Appellant that he fired on all three deceased Pintu Singh, Sunil Singh and Dipak Singh due to which they received injuries and died at the spot. 27. On consideration to the submissions of the counsels appearing on behalf of the State and the Informant, we find no infirmity in the impugned judgment so far it relates to conviction of Appellant under Section 302 IPC and 27 of the Arms Act. 28. Now the crucial question which arises for consideration is as to what should be the sentence imposed upon the Appellant. Whether the sentence of death awarded by the Trial Court be affirmed or a lesser sentence be awarded. 28. Now the crucial question which arises for consideration is as to what should be the sentence imposed upon the Appellant. Whether the sentence of death awarded by the Trial Court be affirmed or a lesser sentence be awarded. For awarding death sentence the Trial Court has given following reasons: (i) The crime has been committed in a very planned manner and executed in extreme brutality. (ii) Three helpless innocent persons of very tender age of 19-24 years were murdered in broad day light, without there being any provocation from their side. (iii) Victims were undefended and subjected to atrocities and cruelty before their murder, as per evidence on record. (iv) The motive of crime was to terrorise the people of that locality and to establish Appellants supremacy in the world of crime. (v) The Appellant is an adult preparator of crime, who has committed this heinous offence with full knowledge and conscience, while in stable state of mind. (vi) It is the case which comes within the category of rarest of rare cases, according to law laid down in Bachan Singh v. State of Punjab AIR 1980 SC 267 and Machi Singh v. State of Punjab2 AIR 1983 SC. 957 . 29. Counsel for the State has submitted that facts of the case and evidence on record bring this case in the category of rarest of rare case. The object of sentencing in case of conviction of a criminal is two-fold: (a) reformative and (b) deterrent. This Appellant being an adult person deeply involved in the crime and crime being his profession, there is not scope for his reformation. In cases, like the present one only object while awarding sentence can be deterrent, so that a message should go to the society and people in general should come to know that this will be the final fate of a person indulging in such crime. It has been held in several decisions of the Apex court that in cases of pre planned, calculated, cold blooded murder, imposition of death penalty is justifiable. 30. The aggravating circumstances in which the Court may impose the penalty of death in its discretion are as follows: (a) if the murder has been committed after previous planning and involves extreme brutality; or (b) if the murder involves exceptional depravity; or 31. 30. The aggravating circumstances in which the Court may impose the penalty of death in its discretion are as follows: (a) if the murder has been committed after previous planning and involves extreme brutality; or (b) if the murder involves exceptional depravity; or 31. In the present case, the facts as disclosed by the prosecution and the evidence brought on record makes it clear that there was no previous planning and the offence was not committed in calculated manner. The Appellant for some specific reason which has not been disclosed in his statement under Section 313 Cr.PC, became excited on finding three victims present at Ramgarh Chowk. Suddenly he decided to bring them at his place and kill them. Undoubtedly, the manner in which the offence was committed, was brutal. But, there is no evidence that Appellant was earlier also convicted for such heinous crime. No piece of evidence was brought by the prosecution to indicate that Appellant has a long criminal history. There is all probability that it was the first serious crime committed by the Appellant. In such cases there is still a ray of hope and probability of Appellants being reformed. After balancing all the aggravating and mitigating circumstances of the crime, I am of the view that instead of extreme penalty of death, it will be proper to commute the death sentence into life imprisonment. The life imprisonment, in the case of this Appellant will mean till life. He will not be entitled for his premature release on account of any remission provided under the Jail Manual or under Section 432 of the Code of Criminal Procedure. The sentence awarded to the Appellant under Section 27 of the Arms Act and fine imposed is confirmed. The death reference and the appeal preferred by the Appellants are being dismissed with modification in the sentence awarded to the Appellants.