Imtiyaz Murtaza,J Present appeal has been preferred against the judgement and order dated 11.2.2011 rendered by Additional Sessions Judge Hardoi whereby the appellants namely Ramesh alias Kunha, Saroj and Satish alias Budunna have been convicted for offences under section 302 read with section 149 IPC and each of them has been sentenced to suffer capital punishment. The appellants have further been convicted for offence under section 147 IPC and each of them has been sentenced to undergo one year's RI. Again the appellants has been convicted for offence under section 148 IPC and each of them has been sentenced to undergo RI for two years. The appellants have further been convicted for offences under section 307 read with section 149 IPC and each of them has been sentenced to suffer RI for 10 years with default stipulation to pay a fine of Rs 10,000/- each and for default to undergo RI for 10 months each. All the sentences have been ordered to run concurrently. 2. It is a case in which five persons of a family were brutally murdered in village Tandkhera Majra Bharawan PS Atraulil district Hardoi. The FIR in the case was lodged on 31.5.2009 at 7.30 am by Gopal Shukla, informant, which was registered at case crime no 358 of 2009 under section 307 and 302 IPC against unknown persons. Adumbrated in brief, the prosecution as unfolded in the written report scribed by Gopal Shukla, is that on 30.5.2009, after partaking of meal, his brother Pappu Shukla, his brother's wife, Ganga Devi and nephew Mota retired to their room situated in the eastern side of the house. In the adjoining room, his nephews Chhota, and Shivam were asleep on a cot. Both the rooms, it is stated, had no doors. It is also alleged that his another nephew namely Hari om was asleep on a cot in Verandah. His father, it is also alleged was asleep in yet another adjoining Verandah all alone. The informant himself, it is alleged, was asleep under the thatch on a wooden plank. It is further alleged that when he woke up in the morning at 7 am, he immediately went to ease himself and on return, he knocked at the door but it elicited no response. The informant himself, it is alleged, was asleep under the thatch on a wooden plank. It is further alleged that when he woke up in the morning at 7 am, he immediately went to ease himself and on return, he knocked at the door but it elicited no response. When repeated knocks did not elicit any response, he climbed up the roof of the house of his uncle wherefrom he saw the mutilated body of his brother Pappu Shukla lying on the cot. Thereafter, he managed to enter the court yard and saw his brother Pappu, Bhabhi Ganga Devi and nephew Mota lying dead on their respective cots and it appeared that someone had assaulted them with sharp edged weapon. He then went to another room where his nephews Shivam and Chhota were found lying supine and they also appeared to have been assaulted with sharp edged weapon. Shivam was found badly wounded. Thereafter, he went to verandah where his nephew Hariom was found lying dead and it also appeared that he had been assaulted with sharp edged weapon. Thereafter, he immediately rushed outside and screamed for help which attracted the village people who looked terrified. 3. After the registration of the case, the investigating officer immediately rushed to the scene of occurrence on 31.5.2009 and prepared the site-plan Ex ka 67. It is alleged that since five persons of a family had been murdered, police of various police stations converged to the scene of occurrence. It is alleged that inquests on the dead bodies were prepared by the police of different police stations. 4. It would transpire from the record that S.I. Mahendra Pratap Singh, embarked upon investigation, and to begin with he collected simple and blood stained earth from the place of occurrence and prepared Ex Ka 3. He also prepared inquest report of the deceased Hari Om at 9.10 am. 5. The inquest on the body of Pappu Shukla deceased was performed by S.I Shamsher Singh while the inquest on the body of Chhote Shukla was conducted by S.I Ram Swarup Pandey. SI Rajan Kumar conducted inquest on the body of Mota aged 10 years. The inquest on the body of deceased Ganga Devi aged 30 years was conducted by S.I K.N.Diwakar. 6. The autopsy on the dead bodies was done by Dr Shyam Singh PW 7. SI Rajan Kumar conducted inquest on the body of Mota aged 10 years. The inquest on the body of deceased Ganga Devi aged 30 years was conducted by S.I K.N.Diwakar. 6. The autopsy on the dead bodies was done by Dr Shyam Singh PW 7. The Doctor found as many as six ante mortem injuries on the person of deceased Pappu Shukla. 7. The self same Doctor conducted autopsy on the dead body of deceased Ganga Devi and found as many as six injuries on her person. 8. The said Doctor also conducted autopsy on the dead body of Mota Shukla aged 10 years and found four ante mortem injuries on his person. 9. At 3 pm the Doctor also conducted autopsy on the dead body of Hari Om aged 12 years and found two anti mortem injuries on his person. 10. One of the persons of the family namely Shivam aged 14 years had been found seriously injured but seems alive as he was felt to be breathing and therefore, he was rushed for medical treatment to the Medical College Lucknow in an unconscious state where he was administered treatment by Doctor Yogendra Singh PW 9. The injured was admitted to medical college on 31.5.2009 and was discharged on 23.6.2009. 11. It would also transpire from the record that the police in the meanwhile tried to lay hands on the clue leading to gruesome murders of five members of a family and in its bid, it apprehended accused Saroj and subjected him to sustained interrogation which led to recovery of Banka on the pointing out of the accused used in the commission of the offence from a field of one Sarvesh situated by the side of the road leading to Sagar Garhi. The said accused confessed that he had murdered the deceased with the aid of the weapon further admitting that one of the sons of deceased Pappu Shukla could somehow survive the assault further confessing that after commission of the offence, he had thrown away the Banka on way in the bushes from where it was recovered. Thereafter, the police on the basis of confessions made by the accused and after collecting various other incriminating evidence, arrested, Ramesh alias Kunha, Saroj and Satish alias Budanna and after completion of investigation, submitted charge sheet in the court. 12. Thereafter, the police on the basis of confessions made by the accused and after collecting various other incriminating evidence, arrested, Ramesh alias Kunha, Saroj and Satish alias Budanna and after completion of investigation, submitted charge sheet in the court. 12. The prosecution in order to prop up its case, examined in all 13 witnesses out of whichPW 1 is Gopal Shukla, who is first informant, PW 2 is Shivam who was injured and survived the assault, PW 3 SI Mahendra Pratap Singh, Pw 4 SI Shamsher Singh, PW 5, SI Ram Swarup Pandey, PW 6 SI Rajan Kumar, PW 7 Dr Shyam Singh, PW 8 SI K.N. Diwakar. PW 9 Dr Yogendra Singh, PW 10 HCP Putti Lal, PW 11, Rajesh Kumar Awasthi, PW 12, SO Brajesh Kumar Pandey, and PW 13, SI D.G. Bharti. 13. The accused persons abjured the guilt submitting that the entire prosecution case has been concocted and that the witnesses were primed to falsely depose in the case. It was also submitted that recovery was fake and has been foisted on him. It is also submitted that the injured witness Shivam was tutored to falsely depose against them. The inquest conducted on the dead bodies was also said to be nothing but manipulation. The FIR was also said to be anti timed. They lastly submitted that they have been falsely implicated in the case at the behest of village Pradhan and Local MLA. 14. The sessions Judge after appraisal of evidence on record, recorded verdict of conviction against the appellants as stated supra. 15. We have heard learned counsel for the appellants and also learned AGA at prolix length. We have also been taken through the materials on record. 16. PW 1 Gopal Shukla deposed that the accused persons were known to him who were natives of neighbouring village. He reiterated the facts as contained in the FIR. He also deposed in his testimony that there was running feud between him and the accused persons also submitting that the accused persons were highly inimical towards deceased Pappu. Dwelling on the back ground leading to culmination of the incident, he deposed that in the year 2003, accused Ramesh alias Kunha had purchased a tractor on loan in the year 2003 on the basis of Khatauni of his maternal uncle who was a native of the neighbouring village. Dwelling on the back ground leading to culmination of the incident, he deposed that in the year 2003, accused Ramesh alias Kunha had purchased a tractor on loan in the year 2003 on the basis of Khatauni of his maternal uncle who was a native of the neighbouring village. This was protested by deceased Pappu who even went to the extent of lodging a case against Ramesh. It was this incident which sowed the seed of discord between the accused and deceased Pappu and the accused started nursing vengeance against the deceased. After this, the accused persons used to frequent the village and also used to stay in an adjoining house. Accused Saroj had started living in the village. The accused Saroj, he also deposed, used to stay in the house of Chhutke. Since he had eloped with the daughter of Chhutke, the deceased had protested against the conduct of accused Saroj. He also recited another incident submitting that few days before the occurrence, there was altercation between the accused Ramesh and deceased Pappu over sharing of tubewell water in which Ramesh accused had unleashed threats to see him with dire consequences. Narrating these incidents, he deposed that the accused had committed murders. He also deposed that on 12.7.2009, the police had arrived with accused Saroj who was then sitting in the police Jeep and had taken him alongwith them to witness recovery of Banka which he further deposed was recovered on the pointing out of Saroj from a field which was situated on way to road leading to Sagargarhi. He also deposed that the accused had told at that time that he had committed murder with the aid of this Banka and that one of the deceased somehow survived and that after committing murder, the Banka was thrown away at the place from where it was recovered. 17. The witness was subjected to gruelling cross examination. On being cross examination, he stated that his maternal uncle had 30 Bighas of land and he had died 4 years back. He also stated that the accused persons had purchased tractor on loan by filing Khatauni of the land of his maternal uncle and when this fact came to light the deceased Pappu informed the son in law of his maternal uncle who was settled at Hardoi. He also stated that the accused persons had purchased tractor on loan by filing Khatauni of the land of his maternal uncle and when this fact came to light the deceased Pappu informed the son in law of his maternal uncle who was settled at Hardoi. On being informed, a First Information Report was lodged against the accused persons in which deceased Pappu was a witness. The witness also brought on record the notice received from the Bank as Ex. 3. He also stated that his father was dumb and deaf from birth and he was very old and further that he was also called by the name "Hazarat". The witness also brought on record FIR lodged in the matter of purchase of tractor by the accused on loan. 18. He denied the suggestion that Pappu Shukla was not a witness in the case lodged against accused in the matter of purchase of tractor on loan. He also stated that deceased Pappu Shukla was also known by the name Srigopal Shukla and he was named as a witness in the charge sheet. He conceded the fact as correct that in Ex ka 61, the witness is mentioned as Sri Gopal Shukla son of G.P.Shukla. He denied the suggestion that no tractor was purchased on loan in the name of his deceased maternal uncle. 19. Recollecting the precise details on the date of occurrence, he stated that that it was a pitched dark night and on that night he was asleep outside the house under a thatch. On that day he woke up at 7 am and immediately left to ease himself and when he came back he knocked at the door but it elicited no response and thereafter, he went up the roof through the house of his neighbour Ninua and what he first of all saw was the blood all around. He stated that he did not see any one assaulting nor did he find any weapon of assault from the spot. He also stated that when he climbed up the roof, Lalu, his ancular brother followed him. At that time, Shivam was lying supine but he was noticed alive as he was breathing and therefore, he was immediately taken out. Since he was unconscious, he had no talk with the injured. He could talk to him after more than a month at the hospital when he regained consciousness. At that time, Shivam was lying supine but he was noticed alive as he was breathing and therefore, he was immediately taken out. Since he was unconscious, he had no talk with the injured. He could talk to him after more than a month at the hospital when he regained consciousness. In between whenever he tried to talk about the incident with him, the injured merely wept. He also stated that accused Ramesh was apprehended after a month of the incident while accused Saroj was arrested after one month and 12 days. He also narrated the facts leading to recovery of Banka. He also stated that recovery memo of Banka was prepared at the police station. He could not recollect whether his signatures were obtained on the recovery memo or not. 20. Reverting to the events on the day of occurrence, he stated that he had gone to the police station to inform and thereafter, the police came at the scene of occurrence. He also staed that written report was prepared by him at the house itself. He also stated that shivam had been removed to hospital at Lucknow and he was taken to Lucknow by Pappu and Ram Babu. He also stated that during the course Shivam remained admitted in the hospital, he had gone to take his welfare on 4 to 5 occasions. The accused Saroj had eloped with the daughter of his ancular brother Chottake and on this count, hot talks had ensued between them and as a consequence of which the accused had threatened with dire consequences. He conceded the fact that he was not present at the time when there was exchange of hot talks between them. He denied the suggestion that recovery was not made in his presence. He also denied the suggestion that the accused were not involved in the murders of the deceased. He also denied the suggestion that Shivam was in his full senses and he was talking. He also denied the suggestion that he was falsely deposing on the dictates and pressure of the local police. 21. The PW 2 Shivam is an injured witness. The court has mentioned the fact that on being examined, this witness was found to be understanding and capable of understanding what he was to depose. He also denied the suggestion that he was falsely deposing on the dictates and pressure of the local police. 21. The PW 2 Shivam is an injured witness. The court has mentioned the fact that on being examined, this witness was found to be understanding and capable of understanding what he was to depose. He deposed that on the day of occurrence, he and his brother were lying on one cot in the courtyard. He explained that since it had rained during night, he and his younger brother shifted to room. He also gave details about the place where inmates of the house had retired during night. At that time, he deposed, he was waking and soon after he heard some commotion and he peeped out, he saw accused persons armed with Ballam and Banka. He deposed that a battery operated small tube rod was lit and he recognised the accused in the light being shed by the small tube rod. He stated that the accused persons first of all entered the room where his mother and father were asleep where they assaulted and murdered his mother, father and his brother Mota. He also stated that he was too terrified to speak and as such he could scream for help. Thereafter, the accused, he further deposed, entered his room where they first of all struck his brother and thereafter they struck him and after hitting, they talked between themselves that these two have also been done to death and one more remains to be struck. This witness also claimed to have recognised the accused in the light of torch which the accused flashed. Thereafter the accused, he further stated, went inside the room where Hari om was asleep and he heard the accused striking Hari om. Thereafter, the witness stated that he became unconscious and he regained consciousness in the hospital. He reiterated the version of PW 1 submitting that there was a quarrel between the accused and his father and as a result, the accused had turned inimical towards them. 22. This witness was subjected to sustained cross examination. During cross examination, he stated that Sagar Garhi village was situated at a distance of one Km from the village. He also stated that he had stopped going to school as he faced risk to his life and that prior to the incident, he was studying in 5th standard. 22. This witness was subjected to sustained cross examination. During cross examination, he stated that Sagar Garhi village was situated at a distance of one Km from the village. He also stated that he had stopped going to school as he faced risk to his life and that prior to the incident, he was studying in 5th standard. He also stated that he was admitted to Narayan Montessory School at Atrauli. He also stated that the accused persons had intimate relation with his neighbours where they used to frequent. He also stated that his house was situated adjoining a pond and across the pond, there were 2 to 4 houses. He stated that the names of accused persons were known to him and that they were notorious and people looked at them at rogue. He also stated that they were in the habit of letting loose their cows and used to confront people on the least excuse. He also stated that the accused persons had played fraud in utilising the Khatauni of the maternal uncle of his father for purchasing tractor on loan. He denied the suggestion that the names of the accused persons were not known to him. He explained that since the accused Saroj had eloped with a girl of his family, they were known to him. He gave further details about the accused. He also stated that at the time of occurrence, he was awake. He explained that initially, they had slept in the court yard but since it had rained during night, they shifted their cot to the room. He also stated that the room had no doors. He denied the suggestion that he was asleep on the cot all alone. He also stated that the accused had gained entry into the house from the side of pond and they were 4-5 in numbers and they had not covered their faces. He also stated that his house was without electricity connection. He explained that initially the accused entered the room of his mother and father and they had the sound of deceased being struck. He stated that at that time, he was watching the assault by skulking behind the wall. He stated that at that time, Kunha Budduna and Saroj were armed with Banka and two of the unknown accused were armed with Ballam and Bhala. He stated that at that time, he was watching the assault by skulking behind the wall. He stated that at that time, Kunha Budduna and Saroj were armed with Banka and two of the unknown accused were armed with Ballam and Bhala. He stated that he could not tell how many times, they struck his mother and father. He also stated that he did not dare to come out of his room as he was dumb struck. He also stated that those accused who were armed with Ballam had not assaulted him. He also stated that since he was dumbstruck due to fear, he could not scream for help. After being assaulted, he slipped into unconscious state and he regained senses in hospital. He could not tell when he regained consciousness. 23. He stated that he was struck by Banka further submitting that it was Kunha who had assaulted him with Banka. At the time, when accused struck him with Bank, he had turned his head and therefore, he was struck on left side. He could not tell whether blood had oozed out or not. He also stated that Gopal Shukla was his uncle and he had met him in the hospital. He also stated that his statement was recorded by the police after a month when he was staying in the room with his maternal uncle at Lucknow. He stated that he had disclosed the names of the accused and also the weapons which they were equipped at the time of assault. He denied the suggestion that he was lying alone in the Verandah and in case such a statement has been recorded by the police, he could not tell why the statement to that effect was recorded by the police. He denied the suggestion that he was not lying in his room and he was telling a lie. He denied the suggestion that he had made a statement to the effect to the police that when he heard the sound of deceased being struck, he fell unconscious. He conceded the fact that he had no torch with him at the time of occurrence but denied the suggestion that no one flashed torch at the time of occurrence. He also denied the suggestion that accused had not murdered the deceased but they were murdered by some unknown assaillants. He denied knowledge whether his father was involved in any litigation. He also denied the suggestion that accused had not murdered the deceased but they were murdered by some unknown assaillants. He denied knowledge whether his father was involved in any litigation. He denied the suggestion that he was not present in the room and that he had not seen any occurrence at all. He also denied the suggestion that he had not suffered any injury and the injuries were faked and fabricated and that he had named the accused at the dictates of the police. 24. During the course of arguments, learned counsel for the appellants submitted that from the testimony of Investigating Officer, it transpires that the statement of injured witness P.W.2 Shivam was also recorded under Section 164 Cr.P.C, but the defence did not cross-examine this witness regarding the statement recorded under section 164 Cr P C. This Court in exercise of powers under Section 367 Cr.P.C had summoned P.W.2 Shivam, who was cross-examined by the counsel for the appellants. 25. PW 3 is SI Mahendra Pratap Singh. He deposed that at the time of occurrence he was posted as SI at police Station Atrauli. This witness conducted autopsy on the dead body of Hari Om and collected simple and blood stained earth and prepared recovery memo. 26. PW 4 is SI Shamsher Singh. He deposed that at the time of occurrence, he was posted at PS Atrauli. This witness conducted inquest on the person of deceased Pappu Shukla and collected simple and blood stained earth. 27. PW 5 is SI Ram Swarup. He deposed that at the time of occurrence he was posted at PS Kachhauna as SI. This witness conducted inquest on the body of Chhote Shukla and prepared recovery memos after collecting simple and blood stained earth. 28. PW 6 is SI Ramendra Rajan Kumar who was then posted at PS Kasimpur Distt Hardoi as Sub Inspector. This witness conducted inquest on the body of deceased Mota aged 10 years. He also collected simple and blood stained earth and prepared recovery memos. 29. PW 7 is Dr Shyam Singh who was then posted as CHS Sandila. He deposed that he had conducted autopsy on the persons of Pappu Shukla and he had found six ante mortem injuries on his person. He also collected simple and blood stained earth and prepared recovery memos. 29. PW 7 is Dr Shyam Singh who was then posted as CHS Sandila. He deposed that he had conducted autopsy on the persons of Pappu Shukla and he had found six ante mortem injuries on his person. He also deposed that he conducted autopsy on the body of Ganga Devi aged 40 years at 2.30 pm and found six ante mortem injuries on her person. He also deposed that he conducted autopsy on the person of deceased Chhotey Shukla aged six years at 4 pm and found three ante mortem injuries on his person. He also deposed that he conducted autopsy on the person of deceased Mota aged 10 years at 3.30 pm and found four injuries on his person. He also deposed that he conducted autopsy on the person of deceased Hari Om aged 12 year at 3 pm and found two ante mortem injuries on his person. 30. PW 8 is SI K.N.Diwakar who was then posted as Station officer PS Atrauli Distt Hardoi. He deposed that he had conducted inquest on the person of deceased Ganga Devi and had prepared all papers relating to her and processed the same for onward transmission for post mortem. He also deposed that he collected simple as well as blood stained earth from the place of occurrence. 31. PW 9 is Dr Yogendra Singh, who was then posted as Junior Resident Medical College Lucknow. He deposed that on 31.5.2009, injured Shivam was brought to hospital at 12.05 pm in serious condition as he had injuries on his head. He was admitted to hospital. Initially X-ray of his chest and stomach was done and thereafter, he was subjected to CT scan for injuries on his head.. At that time, the injured was unconscious and was not in a position to give statement. On CT scan, right side parietal bone was found fractured. On scrutiny, a wound in V shape was detected above right ear. Homoglobin was hovering at 9.2 which was 3-4 point less than normal. He also deposed that the injured was treated for 24 days in hospital. He opined that injuries were of grievous nature which could prove fatal to his life. The injured was discharged from hospital on 23.6.2009. On scrutiny, a wound in V shape was detected above right ear. Homoglobin was hovering at 9.2 which was 3-4 point less than normal. He also deposed that the injured was treated for 24 days in hospital. He opined that injuries were of grievous nature which could prove fatal to his life. The injured was discharged from hospital on 23.6.2009. He produced BHT and other papers relating to his treatment in the court which were marked as Ex ka 39 and Ex ka 56. 32. During cross examination, he stated that the injured was admitted in the hospital by one Rajesh Kumar and it was with his consent that treatment was started. He also stated that Rajesh Kumar was not constant companion of the injured and his replacement used to come to tend on the injured. He also stated that at the time of admission, the injured was not conscious. He also stated that when he regained complete consciousness he was discharged. He opined that the injury could be caused by blunt object. He denied that the police ever contacted him to record his statement. 33. PW 10 is HCP Priti Lal who had registered the case on the basis of written report scribed by Sripal Shukla. During cross examination he denied the suggestion that the report was prepared after due deliberation. 34. PW 11 is Rajesh Kumar Awasthi. He deposed that he was related to Pappu Shukla as his brother in law. He also deposed that the accused were known to him. He also deposed that the accused persons had purchased tractor on loan by producing Khatauni of the land belonging to maternal uncle of deceased Pappu which Pappu had emphatically protested and a criminal case was also lodged against the accused persons. It was this incident which resulted in frayed tempers and strained relationship and exacerbated ill will between them. On this count, the accused had unleashed threats to the deceased. He also deposed that one of the accused Saroj had illicit liaison with a girl of the family of Pappu who after the incident had escaped from the village and eversince then the accused persons were on the look-out for murdering the deceased. On this count, the accused had unleashed threats to the deceased. He also deposed that one of the accused Saroj had illicit liaison with a girl of the family of Pappu who after the incident had escaped from the village and eversince then the accused persons were on the look-out for murdering the deceased. He recited another incident stating that on one occasion, when his brother Awadhesh of village Dulanagar was ploughing the field, the accused persons had stopped him from ploughing the field and when his brother defied them, the accused persons threatened with dire consequences. The precise threat extended to him he deposed, was that the days of his brother in law are numbered and that they would meet the worst fate which he would remember for days and years to come. He also deposed that in prosecution of their threats extended to him, the accused persons exterminated the entire family leaving Shivam seriously injured. He also deposed that inquest on the dead bodies was done in his presence. He thereafter rushed to Medical college Lucknow where the doctors attending on Shivam obtained his signatures on two-three papers. He also deposed that all the accused persons were persons of criminal proclivities and they have to their discredit various criminal cases. All the accused persons have created terror in the village and no one dared to confront them. 35. During cross examination,he stated that he was a native of village Sitkahna which lies at a distance of about 16 kms from the village. He also stated that he had no intimate relation with the accused persons but on account of being notorious they were known to all. He also stated that the accused persons were not related to Thakur Prasad, maternal uncle of deceased Pappu. He also stated that the tractor purchased by accused persons was of blue colour and he had not seen tractor after the year 2003. He denied knowledge as to fate of case registered by the son in law of Thakur Prasad against the accused. He denied occurrence of any heated exchanges between the deceased Pappu in his presence and the accused but stated that heated exchanges had taken place in the presence of his brother Awadhesh. He stated that Saroj used to frequent the house of Chutakke. He denied occurrence of any heated exchanges between the deceased Pappu in his presence and the accused but stated that heated exchanges had taken place in the presence of his brother Awadhesh. He stated that Saroj used to frequent the house of Chutakke. After the incident of elopement of the daughter of Chutakke, the accused Saroj used to visit the village stealthily. He denied the suggestion that there was no heated exchanges between the accused Saroj and deceased Pappu. He denied that he witnessed the assault on the deceased persons. He stated that next day he had arrived at the scene at 8 am and by that time, Shivam was not present there. The police had arrived at the scene of occurrence in his presence on the spot. He also stated that he had stayed at the village upto 11 am and thereafter he set out for Lucknow. He also stated that he throughout remained with the injured at Lucknow. He also stated that Supdt of Police had arrived to see the condition of Shiva after 28 to 29 days. He denied the suggestion that since he was related to the deceased, he was deposing falsely in the case. 36. PW 12 is Brijesh Kumar Pandey who was then Station officer of the police station Atrauli Hardoi. He deposed that he had taken over the investigation immediately on 2.6.2009 after transfer of earlier SO DC Bharti and the same day he started the investigation. First of all,he recorded the statement of Gopal Shukla informant and thereafter, he recorded the statement of Smt Sarojani daughter of accused Ramesh alias Kunha. On 3.6.2009 he tried to find out who were accused and in this connection,he recoreded the statement of witness Murli Maurya. On 8.6.2009 he recorded the statement of witnesses Manohar Dubey, Harishanker Tiwari, Kundanlal Dubey etc. Thereafter he searched for the accused Ramesh alias Kunha and Budunna and Saroj but there were nowhere to be found. On 12.6.2009, again search was made to apprehend the accused but they were not traceable. On 21.6.2009, he recorded the statement of witness Babbu alias Raj Kishore Awasthi. On 28.6.2009, he went to Lucknow where he recorded the statement of injured Shivam and Aditya Kumar Trivedi. On 12.6.2009, again search was made to apprehend the accused but they were not traceable. On 21.6.2009, he recorded the statement of witness Babbu alias Raj Kishore Awasthi. On 28.6.2009, he went to Lucknow where he recorded the statement of injured Shivam and Aditya Kumar Trivedi. On 29.6.2009, the names of two unknown accused persons came to light and he again searched for the accused on the basis of statement of injured Shivam but they were nowhere traceable. He again undertook search for the accused on 1.7.2009 and 2.7.2009 but they were nowhere to be found. On 3.7.2009, accused Ramesh alias Kunha was arrested. On 12.7.2009, accused Saroj, Satish alias Budunna were arrested who confessed commission of offence and on pointing out of accused Satish, Banka was recovered on 12.7.2009. On 24.7.2009 the statement of Shivam was recorded in the court under section 164 Cr.P.C. On 31.7.2009, unknown assaillants were searched for. On 10.8.2009, the statement of Shivam was again recorded in the court. On various other dates he completed all formalities pertaining to investigation. 37. During cross examination, he stated that initially the case was registered against the unknown persons. He also stated that upto 8.6.2009, the identity of accused persons had not come to light as sufficient incriminating evidence was not forthcoming but the accused persons were suspected to be perpetrators of the crime. He also stated that on 28.6.2009 when the statement of injured Shivam was recorded, the identity of the accused persons became clear. 38. PW 13 is SI D.G Bharti who was then posted as Station officer at PS Atrauli. He initially took over investigation. He conducted investigation till 2.6.2009 on which date he was transferred. He stated that during investigation, he suspected hands of the accused Ramesh alias Kunha and searched for him on 1.6.2009 but he was not traceable. 39. During cross examination, he denied the suggestion that he had completed all the formalities while sitting at Police station and had not done anything on the place of occurrence as shown by him. 40. The submissions advanced across the bar in substance revolves round the points (1) there was no strong motive, (2) there was no source of light, (3) the witness which was relied upon was a child witness and that (4) there was no corroboration of the testimony of the child witness. 41. 40. The submissions advanced across the bar in substance revolves round the points (1) there was no strong motive, (2) there was no source of light, (3) the witness which was relied upon was a child witness and that (4) there was no corroboration of the testimony of the child witness. 41. To begin with, the learned Counsel for the appellants canvassed that the accused were not imbued with any proximate strong motive to have committed the gruesome murder of five persons. In connection with this submission, we have carefully delved into the evidence on record. 42. P.W.1 Gopal Shukla deposed that the accused persons were highly inimical towards deceased Pappu. To prop up it, he referred to the incident of the year 2003, when the accused Ramesh alias Kunhe had purchased a tractor on loan on the basis of Khatauni of his maternal-uncle who was a native of a neighbouring village. When the deceased Pappu came to know of it he remonstrated with the accused and even lodged a report against Ramesh. It is further alleged that the accused persons used to visit the village quite frequently and stayed in an adjoining house. Thereafter, the accused Saroj had started living in the village and he used to stay in the house of Chhutke. It is further deposed that accused Saroj had developed intimacy and had eloped with the daughter of Chhutke. The other motive suggested by P.W.1 in his deposition is that there was an altercation between accused Ramesh and deceased Pappu over sharing of tube well water in which Ramesh accused had unleashed threats to see him with dire consequences. This witness was subjected to grueling cross-examination. He stated that the accused persons had purchased tractor on loan by filing Khatauni of the land of his maternal-uncle, who was settled at Hardoi. A first information report was lodged against the accused persons in which deceased Pappu was a witness. This witness also stated that the accused persons had played fraud in utilising the Khatauni of the maternal uncle of his father for purchasing tractor on loan. He further stated that Saroj had eloped with the girl of his family. 43. A first information report was lodged against the accused persons in which deceased Pappu was a witness. This witness also stated that the accused persons had played fraud in utilising the Khatauni of the maternal uncle of his father for purchasing tractor on loan. He further stated that Saroj had eloped with the girl of his family. 43. We have given our anxious considerations to the deposition of this witness and before we proceed further we would like to refer to the settled legal position on the issue of motive which is to the effect that the motive has great significance in a case involving circumstantial evidence, but where direct evidence is available, which is worth relying upon, motive loses its significance. It is also a settled position in law that in a case where there is direct evidence of witnesses which can be relied upon, the absence of motive cannot be a ground to reject the case and under no circumstances, the motive can take the place of the direct evidence available as proof. In a case like the present one, proof of motive is not relevant at all. Motive in criminal cases based solely on the positive, clear, cogent and reliable ocular testimony of witnesses is not at all relevant. In such a fact situation, the mere absence of a strong motive to commit the crime, cannot be of any assistance to the accused. The motive behind a crime is a relevant factor regarding which evidence may be led. The absence of motive is also a circumstance which may be relevant for assessing evidence. Here in the instant case, we are not concerned with the sufficiency or otherwise of the motive which would have prompted the appellant to commit the crime. The law is clear that the correctness of conviction cannot be tested on the touchstone of lack of sufficient motive, if the evidence establishes beyond reasonable doubt that the accused committed the crime. 44. The learned counsel for the appellants, to buttress his submission, further submitted that the incident had taken place in mid-night and that there was no source of light. In connection with this submission, we have again delved into the evidence adduced by the prosecution. P.W.2 Shivam is an injured witness of the incident. 44. The learned counsel for the appellants, to buttress his submission, further submitted that the incident had taken place in mid-night and that there was no source of light. In connection with this submission, we have again delved into the evidence adduced by the prosecution. P.W.2 Shivam is an injured witness of the incident. He deposed that a battery-operated small tube rod was illumined and he recognized the accused in the light being shed by this small tube rod. He also claimed to have recognized the accused in the light of torch which the accused flashed. Regard being had to what the witness stated, it is clear that source of light has been mentioned by P.W.2 Shivam . 45. The submission does not commend to us for acceptance that at the relevant time, on account of pitched darkness, it was not possible for the witness as claimed to have recognised the accused. Looking to the evidence on record, in our firm opinion, it won't be too dark to see a person particularly when he is known. In this connection, we also feel called to say that when the light was enough which could enable the victim to have identified their assailants and kill them, it can hardly be contended, much less accepted, that the light was not enough to identify the assailants. Amongst the ex-cathedra decisions on the point, we would refer to the decision referred by the Apex Court in State of M.P. v Makhan (2008) 10 SCC 615 in which the quintessence of what was observed was that ''It is true that even in darkness known persons can be identified from the manner of speech, style of walking and several other peculiar features.'' 46. We may again revert to delve into the evidence of PW 2 Shivam. When this witness was confronted in cross examination, he emphatically denied the suggestion that he could not identify the accused and that he had falsely implicated the appellants and nominated them in the FIR simply for the reason that he could not recognise the real culprits. We do not see any reason whatsoever for throwing on the ground the evidence of PW 2 who undoubtedly was in the house where the gruesome crime was committed and in our opinion, he must have had sufficient opportunity to identify the assaillants with the help of the battery operated tube which was then illumined. We do not see any reason whatsoever for throwing on the ground the evidence of PW 2 who undoubtedly was in the house where the gruesome crime was committed and in our opinion, he must have had sufficient opportunity to identify the assaillants with the help of the battery operated tube which was then illumined. Another factor which lends credence is that the appellants were previously known to him and were not strangers and that the victim had received as many as 19 injuries including three multiple injuries during the course of the occurrence which according to the facts on record, had lingered on for several minutes. By this reckoning, the submission of the counsel for the appellants that there was no sufficient light on the spot to identify the assailants cannot be said to be loaded with any substance. 47. The counsel for the appellants had challenged the testimony of P.W. 2 Shivam on the ground that his statement under section 161 Cr P C has been recorded after about one month of the incident and by this reckoning, he argued, the testimony should be jettisoned on this ground alone. We have carefully considered and we do not find any substance in the submission of the counsel for the appellants inasmuch as the delay in recording statement under section 161 Cr P. C has been properly explained. The counsel for the appellant perhaps overlooked the fact that P.W.2 Shivam had sustained serious injury and he was unconscious and was confined in the hospital till 23.6.2009 and it was thereafter that his statement was recorded on 28.6.2009. In our considered view, there is no such delay as to warrant rejection of his testimony. Be that as it may, it remains a fact that the investigating officer was not asked to explain, if there was any delay. The Sessions judge has considered this submission in extensive details and after reckoning with the evidence on record, he rightly rejected this submission. In this view of the matter, we also lend affirmation to the findings of the trial court. 48. The learned counsel now switched over to assail the findings recorded by the trial court on the solitary testimony of P.W.2 Shivam. In this view of the matter, we also lend affirmation to the findings of the trial court. 48. The learned counsel now switched over to assail the findings recorded by the trial court on the solitary testimony of P.W.2 Shivam. The precise submission made across the bar is that the witness was a child at the time of occurrence and that there is no corroboration of the testimony of this witness and the Sessions Judge has committed gross error in placing reliance on the sole testimony of P.W.2 Shivam. 49. We have given our anxious consideration to the submission of the counsel for the appellants and the evidence on record. In the instant case, the incident had taken place inside the house and P.W. 2 Shivam is a natural witness. His presence at the time of incident cannot be doubted because he had sustained serious injuries. It is settled position in law that in criminal cases, it is not the number of witnesses that count in order to prove the prosecution case and the finding of conviction can be recorded on the basis of single testimony of a witness if he is reliable. In connection with this submission, we feel called to refer to the decisions of the Apex Court in Ramnaresh v. State of Chhattisgarh, reported in (2012) 4 SCC 257 in which the Apex Court has held that "All that is needed is that the statement of the sole eyewitness should be reliable, should not leave any doubt in the mind of the court and has to be corroborated by other evidence produced by the prosecution in relation to commission of the crime and involvement of the accused in committing such a crime.'' 50. The Apex Court has consistently held that as a general rule, the court can and may act on the testimony of a single witness provided he is wholly reliable. There is no legal impediment in convicting a person on the sole testimony of a single witness. That is the logic of Section 134 of the Evidence Act. But if there are doubts about the testimony, the court will insist on corroboration. In fact, it is not the number or the quantity, but the quality that is material. The time-honoured principle is that evidence has to be weighed and not counted. That is the logic of Section 134 of the Evidence Act. But if there are doubts about the testimony, the court will insist on corroboration. In fact, it is not the number or the quantity, but the quality that is material. The time-honoured principle is that evidence has to be weighed and not counted. The test is whether the evidence has a ring of truth, is cogent, credible and trustworthy or otherwise. The legal system has laid emphasis on value, weight and quality of evidence, rather than on quantity, multiplicity or plurality of witnesses. It is, therefore, open to a competent court to fully and completely rely on a solitary witness and record conviction. Conversely, it may acquit the accused in spite of testimony of several witnesses if it is not satisfied about the quality of evidence. It is what the court below has done in the instant case. 51. In the light of above, we have carefully considered the evidence of P.W.2 Shivam. His presence at the time of incident is natural and he also sustained serious injury. The defence did not dispute his presence at the time of incident. He was subjected to gruelling cross examination but nothing favouring the defence could be elicited or extracted out of him in the cross examination to discredit his testimony. The trial court has placed implicit reliance and here in this court no inherent defect was pointed out by the defence and therefore we also find no reason to take a contrary view. He is reliable witness and the trial court has rightly relied upon his testimony for recording the findings of conviction which we also affirm. 52. In the facts and circumstances as discussed above, we uphold the conviction of the appellants as recorded by the trial court. 53. The Sessions Judge awarded death sentence to the appellants treating the case as an exceptional case which warrant death sentence. 54. We have considered the submissions of the counsel for the parties and perused the entire record. The main reason for awarding death sentence by the trial court is that the the crime committed by the appellants was diabolical, and gruesome and it was executed in a very cruel, diabolical and dastardly manner which involved extermination of the entire family including hapless children. The main reason for awarding death sentence by the trial court is that the the crime committed by the appellants was diabolical, and gruesome and it was executed in a very cruel, diabolical and dastardly manner which involved extermination of the entire family including hapless children. He also noticed that the bodies of the deceased were chopped off in a very dastardly and cruel manner and therefore, he regarded the appellants as heartless criminals who was said to be the evil bane of the society at large. The Sessions Judge also observed that in case they are left alive, they would not show mercy in committing murder of the lone surviving male member of the family. In the facts and circumstances, he therefore deduced that culpability of the appellants assumes the proportion of total depravity and constitutes 'special reason' and therefore, no mercy can be shown to such criminals and the sentence of death alone would be justified. We also find that while awarding death sentence, the Sessions Judge also took into reckoning the criminal antecedents of the accused persons holding that they were inveterate and habitual offenders who have to their discredits a long list of criminal cases. He also noticed that the crimes committed by the accused persons were unusual and they were enlisted as history sheeter in the police station. The Sessions Judge noted that as many as 14 criminal cases involving offences of dacoity, theft, murder, attempt to murder, abduction for murder, including the offences under the Gangsters Act were registered against the accused Ramesh alias Kunha. The sessions Judge also mentioned that against accused Saroj alias Satish, as many as 9 and 8 criminal cases were registered which included murder, attempt to murder, abduction for murder, and the offences under the Gangsters Act. 55. Now the question that remains is whether the sentence of death as inflicted by the trial court can be sustained in the facts and circumstances of the case or not. 56. Under the old Code of Criminal Procedure, ample discretion was given to courts to pass death sentence as a general proposition and the alternative sentence of life term could be awarded in an exceptional case and that too after advancing special reasons for making a departure from the general rule. The new Code of 1973 has entirely reversed the approach. Under the old Code of Criminal Procedure, ample discretion was given to courts to pass death sentence as a general proposition and the alternative sentence of life term could be awarded in an exceptional case and that too after advancing special reasons for making a departure from the general rule. The new Code of 1973 has entirely reversed the approach. A sentence of imprisonment for life is now the rule and capital sentence is an exception. It has also been made obligatory on the courts to record special reasons if ultimately death sentence is awarded. 57. In the case of Bachan Singh Vs State of Punjab (1980)2 SCC 684 , the constitutional validity of the provision for death penalty was upheld . The constitutional Bench pointed out that the present legislative policy discernible from section 235(2) read with section 354(3) of the code of criminal procedure is that ''it is only when the culpability assumes the proportion of total depravity that 'special reason' within the meaning of section 354(3) for imposition of the death sentence can be said to exist''. Broad illustrative guidelines of such instances were also indicated therein. It was laid down that the legislative policy applied in section in section 354(3) of the code of criminal procedure is that, if a person convicted of murder, life imprisonment is the rule and death sentence an exception to be imposed in the'' rarest of the rare'' cases. 58. In Machi Singh Vs State Of Punjab 1983 (3) SCR 413 it was observed that it was only in rarest of rare cases, when the collective conscience of the community is so shocked that it will expect the holders of the judicial power center to inflict death penalty irrespective of their personal opinion as regards desirability or otherwise of retaining death penalty. 59. The criminal law adheres in general to the principle of proportionality in prescribing liability according to the culpability of each kind of criminal conduct. It ordinarily allow some significant discretion to the judge in arriving at a sentence in each case, presumably to permit sentences that reflect more subtle considerations of culpability that are raised by the special facts of each case. Judges in essence affirm that punishment ought always to fit the crime; yet in practice sentences are determined largely by other considerations. It ordinarily allow some significant discretion to the judge in arriving at a sentence in each case, presumably to permit sentences that reflect more subtle considerations of culpability that are raised by the special facts of each case. Judges in essence affirm that punishment ought always to fit the crime; yet in practice sentences are determined largely by other considerations. Sometimes it is the correctional needs of the perpetrator that are offered to justify a sentence. Sometimes the desirability of keeping him out of circulation, and sometimes even the tragic results of his crime. Inevitably these considerations cause a departure from just desert as the basis of punishment and create cases of apparent injustice that are serious and widespread. 60. Proportion between crime and punishment is a goal respected in principle, and in spite of errant notions, it remains a strong influence in the determination of sentences. Anything less than a penalty greatest severity for serious crime is thought to be a measure of toleration that is unwarranted and unwise. But in fact quite apart from those considerations that make punishment unjustifiable when it is out of proportion to the crime, uniformly disproportionate punishment has some very undesirable practical consequences''. 61. It is no doubt true that the murder was committed in a very gruesome manner and it is on this ground that the Sessions Judge treated the case as exceptional for awarding the death sentence. The Sessions Judge while awarding death sentence, also took into reckoning the criminal antecedents of the accused and even mentioned the criminal cases in which they were involved. In the decision rendered by the Apex Court in the case of Shankar Kisanrao Khade V State of Maharasthra reported in (2013) 5 SCC 546 in which the Apex Court in para 62 observed that " Therefore, the mere pendency of few criminal cases as such is not an aggravating circumstance to be taken note of while awarding death sentence unless the accused is found guilty and convicted in those cases. High Court was, therefore, in error in holding that those are relevant factors to be considered in awarding appropriate sentence." (Emphasis supplied) 62. The sessions Judge has given list of pending criminal cases and it is no where mentioned that in any criminal case, the accused have been finally convicted. High Court was, therefore, in error in holding that those are relevant factors to be considered in awarding appropriate sentence." (Emphasis supplied) 62. The sessions Judge has given list of pending criminal cases and it is no where mentioned that in any criminal case, the accused have been finally convicted. By this reckoning, as observed by the Apex Court, mere pendency of criminal cases would not constitute aggravating circumstances for awarding death sentence. 63. Considering the facts and circumstances of the case we are of the opinion that the sentence of imprisonment for life in place of death sentence would meet the ends of justice. 64. In view of the discussions made herein above, the appeal is partly allowed. The conviction of the appellants under section 302 is upheld but death sentence is altered to imprisonment for life and fine of Rs. 10000/- and in default of payment of fine, further rigorous imprisonment for one year. Other convictions and sentences awarded by the trial court are upheld. The appellants are in jail and they shall serve out the sentences as awarded by the trial court and modified by us. 65. Reference No 1 of 2011 is rejected. _________________