JUDGMENT : G.D. SAXENA, J. 1. This appeal under section 374(2) of the Criminal Procedure Code, 1973 preferred by the accused/appellant is directed against a Judgment dated 7th February, 2005 delivered in Sessions Trial No. 144/2004 by the Sessions Judge Shivpuri (M.P.), convicting the appellant for committing offence under section 302 of Indian Penal Code for causing murder of four persons, namely, Rashmi daughter of Prakash, aged 17 years, Kranti, daughter of Prakash aged 11 years Rampyari wife of Chintulal aged 60 years and Akash son of Prakash, aged 4 years and sentencing him to suffer imprisonment for life with a fine of Rs. 500/- and in default to undergo additional simple imprisonment of one month. 2. Briefly narrated the prosecution case is that on 18th April, 2004 at about 3.00 a.m. in night, complainant Smt. Mithileshbai (PW-1) wife of Prakash Dhakad, a resident of village Gangora, Police Station Survaya, district Shivpuri made an oral report to Sub-Inspector Shivnath Singh Bhadoria (PW-11), who reached on the spot on information received through telephone by one Devendra Dhakad of the same vicinity that on the fateful night, the accused-appellant Chintulal, who was her father-in-law due to extremely worried about the probable expenses to be borne in the marriage of her daughter Rashmi fixed on 30th April, 2004, killed Rashmi and Kranti (her both the daughters) who were sleeping with accused Chintulal on the roof. He also caused injuries on the person of her mother-in-law who died subsequently during treatment in the hospital. The accused also killed her son Akash with an Axe. She claimed to be the witness to see the accused while killing the above four family members and thereafter stepping down from the roof and going away from the spot. She cried and reached to her cousin mother-in- law Shantibai (PW-3). Thereafter, other nearby neighbours namely, Bharat, Lakhan, Vijay Singh and Ramprasad reached the spot, who shifted the injured, i.e., her mother-in-law and her son Akash on their motor-cycles to the district Hospital Shivpuri, as rest two persons, namely, Rashmi and Kranti already succumbed to injuries on the spot. Dehati Nalish report accordingly was written by Sub Inspector Shivnath Singh Bhadoria (PW-11). In the District Hospital Shivpuri, Dr. Govind Singh (PW-4) immediately examined the injured Rampyari and Akash. The injured were referred to J.A. Group of Hospitals at Gwalior where they took their last breath during treatment. Dehati Nalish report accordingly was written by Sub Inspector Shivnath Singh Bhadoria (PW-11). In the District Hospital Shivpuri, Dr. Govind Singh (PW-4) immediately examined the injured Rampyari and Akash. The injured were referred to J.A. Group of Hospitals at Gwalior where they took their last breath during treatment. An FIR (Ex.P/37) was written on 18th April, 2004 at 6.00 a.m. on the basis of Dehati Nalish and Crime No. 16/2004 was registered against the accused under section 302/307 of Indian Penal Code. At the same time, separate Marg Report pertaining to death of Rashmi and Kranti was also registered on 18th April, 2004 and Marg intimation report in relation to death of Rampyari and Akash was registered on 19th April, 2004 by the concerning police station. The investigation was set in motion. After inquiry and investigation, charge-sheet was filed before the court of Magistrate having jurisdiction. On committal, the Sessions Trial commenced and after recording the evidence, the accused-appellant was convicted and sentenced for commission of offence under section 302 of Indian Penal Code, hence this appeal. 3. It is contended by the learned counsel appearing for the appellant that the judgment of conviction and sentence recorded by the Trial Judge is against the peculiar facts, evidence of the case and the law, hence, same is liable to be set aside. It is submitted that the statements of the witnesses to the effect that the accused killed the deceased are not supported by any other reliable evidence. Learned counsel submitted that from the evidence of ocular witnesses it is gathered that some unknown miscreants/thieves (Bhardias) had killed the deceased and injured the accused also. It is further contended by the learned counsel that the trial Judge has erred to follow the settled proposition of law that if two views appear from the same set of evidence, then the order of acquittal must be issued. On the basis of above arguments, it is prayed that by allowing the appeal, the accused be acquitted of the charge. In support of his submissions, learned counsel relied on the decisions in the cases of Bhagirath vs. State of Madhya Pradesh, AIR 1976 SC 975 , Akhilesh Hajam vs. State of Bihar, 1995 Supp. On the basis of above arguments, it is prayed that by allowing the appeal, the accused be acquitted of the charge. In support of his submissions, learned counsel relied on the decisions in the cases of Bhagirath vs. State of Madhya Pradesh, AIR 1976 SC 975 , Akhilesh Hajam vs. State of Bihar, 1995 Supp. (3) SCC 582, Sampat Kumar vs. Inspector of Police Krishnagari, AIR 2012 SC 1249 , Dandu Jaggaraju vs. State of Andhra Pradesh, AIR 2011 SC 3387 and Varun Chaudhary vs. State of Rajasthan, AIR 2011 SC 72 . 4. The learned Public Prosecutor appearing for the respondent/State, on the other hand, supported the impugned judgment and contended that there is no illegality or perversity in the findings arrived at by the learned trial Court. Hence, it is prayed that the appeal be dismissed. 5. Heard the learned counsel for the parties and also perused the impugned judgment and the evidence on record. 6. There is, no doubt that it is a case of gruesome murders perpetrated in a most cruel, arid, inhuman manner but whether the appellant was responsible for the death of the deceased persons is the next and crucial one question for our consideration in this case. 7. To prove the charge for commission of offence punishable under sections 302 of Indian Penal Code, the prosecution has examined as many as thirteen witnesses. They are Mithileshbai (PW-1) daughter-in-law of accused Chintulal and deceased Rampyari and mother of deceased Rashmi, Kranti and Akash, Devendra Kumar Dhakad (PW-2), Shantibai (PW-3), Bharat (PW-5), Lakhan (PW-6) Mahesh (PW-7) Dr. Govind Singh (PW-4), who examined injured Rampyari and Akash in the District Hospital at Shivpuri, Dr. C.M. Tripathi (PW-9), who performed autopsy on the persons of Rashmi and Kranti in the District Hospital, Dr. J.N. Soni (PW-10) who performed autopsy on the body of Rampyari and Akash, S.C. Saxena (PW-8), Shivnath Singh Bhadoria (PW-11), the Investigating Officer, Ram Naresh Singh (PW-12), Investigating Officer and Badam Singh (PW-13). 8. The defence taken by the accused in support of his case is that on the fateful night, some unknown miscreants perhaps thieves entered into his residence and injured his wife and grandchildren, who succumbed to injuries later on. He examined in defence Prakash (DW-1) who is son of the accused and deceased Rampyari and father of deceased-son Akash and daughters Rashmi and Kranti, including Ratiram (DW-2). 9. He examined in defence Prakash (DW-1) who is son of the accused and deceased Rampyari and father of deceased-son Akash and daughters Rashmi and Kranti, including Ratiram (DW-2). 9. Mithileshbai (PW-1) is sole eye-witness in the case, who deposed that marriage of her daughter Rashmi was to be solemnized on 30th April, 2004. Accused Chintulal is her father-in-law. Near about four months ago, she heard scrimmage of her mother-in-law. She also cried for help. On hearing her hue and cry, the neighbours reached the spot. Then she and the neighbours went at the roof where they saw that her daughters Rashmi and Kranti were mercilessly killed. Her mother-in-law and her son Akash who were sleeping just near to stair-case of the room were also found injured. Her father-in-law (accused) Chintulal was also sleeping on the cot near to her daughters on the roof. She did not see her husband after incident. She disowned her version as mentioned in the F.I.R. lodged on the basis of her Dehati Nalish report. She also denied the details of the incident. Because she did not support the prosecution version, therefore, she was declared hostile. 10. Devendra Kumar Dhakad (PW-2), who reached the spot just after incident deposed that in the month of April, 2004, when the incident happened he was sleeping on the roof of his residence. On hearing hue and cry, he reached the spot, i.e., house of accused Chintulal and saw two daughters whose names were not known to him, one child and one old lady in injured state. By that time 30-40 persons of the locality were collected. However, accused Chintulal was absent. As he reached the spot Mithileshbai (PW-1) disclosed to him that Chintulal caused injuries to the injured lying on the spot by an Axe and thereafter she became unconscious. On the request of the persons gathered on the spot, he informed the police on mobile-phone about the incident. Thereafter the villagers shifted the injured Rampyaribai, Akash and Ram Kumar to Hospital on their motor-cycles. Police reached the spot near about 4 a.m. because this witness denied that he did not see the accused Chintulal running away from the spot with an Axe, the prosecution declared him hostile for that reason. Thereafter the villagers shifted the injured Rampyaribai, Akash and Ram Kumar to Hospital on their motor-cycles. Police reached the spot near about 4 a.m. because this witness denied that he did not see the accused Chintulal running away from the spot with an Axe, the prosecution declared him hostile for that reason. Although, he denied that accused was having an Axe on the spot, but he categorically stated that there was a source of light on the spot and witness Mithileshbai (PW-1) before she became unconscious narrated the whole incident to him. 11. Smt. Shantibai (PW-3) deposed that accused Chintulal is elder brother of her husband (Jeth) and she is living in a separate residence. In the month of April (Vaishakh) on Sunday night at about 2 O'clock, she heard shouts of her daughter-in-law Mithileshbai (PW-1) in the words “killed-killed.” She came out of her residence and thought that some miscreants had committed the incident but at the residence of the accused she did not see any miscreants/thieves. She saw dead bodies of two daughters of Prakash on the spot. As she did not support the prosecution version, therefore she was declared hostile. In cross-examination, she admitted that the accused was cultivating on nine Bighas of agricultural land and used to yearly earn of Rs. 20,000-30,000 from the said source. 12. Bharat (PW-5) neighbour of accused Chintulal deposed that three months ago in mid-night of 17th April, 2002, Mithileshbai (PW-1) came to him for rescue. When he reached the spot, he saw that daughters of Mithileshbai were seriously injured and Rampyari, wife of accused was also seriously injured by an Axe. He stated that Rampyari, wife of the accused stated on the spot to him that Chintulal (Dada) caused injuries to her and her grandchildren by an Axe. Thereafter other nearby villagers gathered on the spot. He and others shifted Akash, Rampyari and Rajkumar to the District Hospital. He also deposed that police prepared the memos of dead-body of Rampyari vide Ex.P/11 and Akash vide Ex.P/12 in his presence at Gwalior. In his cross-examination, he categorically stated that on the spot deceased Rampyari disclosed to him that accused Chintulal inflicted injuries by an Axe to her and her granddaughters and grandson. At the time of incident, the electric light was on. In his cross-examination, he categorically stated that on the spot deceased Rampyari disclosed to him that accused Chintulal inflicted injuries by an Axe to her and her granddaughters and grandson. At the time of incident, the electric light was on. Lakhan (PW-6) also deposed that on hearing hue and cry of Mithileshbai at about 2 a.m. on the fateful night, he reached the residence of Chintulal where Rampyari, wife of accused Chintulal said that accused had caused serious injuries by an Axe to her and her grandchildren. He saw that Rashmi, Kranti, Akash and Ramkumar were also seriously injured by an Axe. In cross-examination, he narrated that Mithileshbai, wife of Prakash was weeping and crying for help. She was saying that someone had caused injuries to her children and her mother-in-law but Rampyari was conscious on the spot and she informed him that accused Chintulal caused serious injuries with an Axe to her and her granddaughters and grandson. 13. Dr. Govind Singh (PW-4), who was posted as Casualty Medical Officer in the District Hospital Shivpuri deposed that on 18th April, 2004 at 4 a.m. injured Rajkumar S/o Prakash, aged 6 years, Akash S/o Prakash aged 4 years and Rampyari aged 60 years, all residents of village Gangora were brought in serious condition to the hospital for treatment. At first, he examined Akash, aged 4 years at 4-10 p.m. who was brought by relative/neighbour Bharat. The injured was grave unconscious with pulse less and pale colour. No sensation was found in limbs. The doctor found the incised wound on back of neck of the injured Akash at root in centre over vertibral column of size 2.5 cm. x 1.5 cm. up to vertibral column deep with bleedings. According to the doctor, the injury was caused by hard sharp cutting object and was dangerous to life. The duration of the injury was within six hours. The patient was then referred to Surgical Specialist for further treatment. The injury report of Akash is Ex.P/8. When the injured Akash was shifted to J.A. Hospital Gwalior, during treatment, he succumbed to injury at 2-45 p.m. in noon. 14. On 19th April, 2002 at 1 p.m. Dr. J.N. Soni (PW-10) conducted autopsy on the body of Akash and found one surgically stitched wound present on back (right side of neck from mid line transversely having 5 stitches 4.5 cm. x 2 cm. 14. On 19th April, 2002 at 1 p.m. Dr. J.N. Soni (PW-10) conducted autopsy on the body of Akash and found one surgically stitched wound present on back (right side of neck from mid line transversely having 5 stitches 4.5 cm. x 2 cm. deep, margins were sharply cut, underneath cut present on vertibral column between 4th & 5th vertebra and posterior 2/3rd of vertibral column; spinal cord was cut. As per doctor, the injury was sufficient to cause death in the ordinary course of nature. He opined that death was due to shock and haemorrhage as a result of neck injury, caused by sharp edged cutting object and was homicidal in nature. Duration of death was within 12 to 24 hours since post-mortem examination. The post-mortem report (Ex.P/28) was written and signed by him. 15. On 18th April, 2002 at about 4.20 a.m. he also examined injured Rampyari, wife of Chintulal, aged 60 years, who was brought by relative/neighbour Bharat in a conscious state. He found the following injuries:- “(i) Huge incised wound over back on scapular region (Rt) of size 8 cm. x 4 cm. x 2 cm. transverse. Bleeding. (ii) Huge incised wound oblique adjoining to Injury No. 1 up to vertebral column.” 16. As per the doctor, both the injuries were caused by hard sharp cutting object and duration was within 6 hours. The patient was referred to Surgical Specialist for further treatment. The injury report is Ex.P/9 written and signed by him. When the injured was brought to J.A. Hospital, Gwalior, during her treatment, she took her last breath at 5 p.m. on the same day in J.A. Hospital, Gwalior. On 19th April, 2004 at 1 p.m. Dr. J.N. Soni (PW-10) conducted autopsy on the body of Rampyari, wife of Chintulal, aged 60 years and found the following injuries:- “(i) Incised wound present on back of right shoulder, obliquely transverse inter medially of size 7 cm. x 4 cm. muscles deep. (ii) Stitched chop wound 1 cm. medial to medial end of Injury No. 1 Obliquely transverse left end lower 11 cm. x 3 cm. x 5 cm. deep. It give cut on 4th thoracic vertibra and part of spinal cord was also cut.” 17. As per the doctor, first injury was having 6 stitches while 2nd injury was having 10 stitches. medial to medial end of Injury No. 1 Obliquely transverse left end lower 11 cm. x 3 cm. x 5 cm. deep. It give cut on 4th thoracic vertibra and part of spinal cord was also cut.” 17. As per the doctor, first injury was having 6 stitches while 2nd injury was having 10 stitches. The above two injuries were ante-mortem in nature and caused by sharp cutting object. The injuries were sufficient to cause death as a result of haemorrhage and shock. Mode of death was homicidal, duration of death was 6-24 hours since post-mortem examination. The report is Ex.P/27, written and signed by him. 18. On the same day, at 4 a.m. injured Rajkumar S/o Prakash was also examined, who was brought by relative/neighbour Bharat. During examination, the doctor found the following injuries:- “(i) Incised wound on left side of neck below left ear of size 4 cm. x 1.5 cm. x 1 cm. deep. Bleeding. (ii) Abrasion on left ear of size 1.5 cm. x 4 cm. on left ear lower ½.” 19. As per doctor, both the injuries were caused by sharp, hard cutting object and the duration was within 6 hrs. The injury report is Ex.P/10 written and signed by him. 20. Dr. C.M. Tripathi (PW-9) deposed that on 18th April, 2004, he was posted as Casualty Medical Officer in the District Hospital Shivpuri. On that day, he conducted autopsy on Rashmi, daughter of Prakash, resident of village Gangora and found following injuries on her person:- “(i) Incised wound size 10 cm. x 2 cm. x bone deep situated on left side of neck at level of C3 lateral aspect. Underlying tissues, mussels and external and internal carotid arteries cut with fracture of C3 vertebral. Clotted blood also present. (ii) Incised wound of size 8 cm. x 2 cm. x bone deep situated on left side of neck, 2.5 cm. below Injury No. 1. Underlying tissues, mussels and external and internal carotid arteries cut with fracture of C6 vertebra. Clotted blood present.” 21. As per the doctor, the two injuries described above, are ante-mortem in nature and caused by hard and sharp object. Both the injuries were sufficient to cause death. Mode of death was homicidal. The post-mortem report (Ex.P/25) is written and signed by him. 22. Clotted blood present.” 21. As per the doctor, the two injuries described above, are ante-mortem in nature and caused by hard and sharp object. Both the injuries were sufficient to cause death. Mode of death was homicidal. The post-mortem report (Ex.P/25) is written and signed by him. 22. On that day at 8.45 a.m. he also conducted autopsy on the dead-body of Kranti, aged 11 years and found following injuries:- “(i) Incised wound of size 8 cm. x 2 cm. x bone deep situated on left cheek extending from left angle of mouth up to left pinna. Left pinna cut and intact. Underlying tissues, mussels, blood vessels cut with fracture of mandible left ramus with clotted blood. (ii) Incised wound of size 8 cm. x 2 cm. x bone deep situated obliquely just below Injury No. 1, on left side of neck. Underlying tissues muscles and external and internal carotid arteries cut with fracture of c2 vertebrae. Clotted blood present. (iii) Incised wound of size 5 cm. x 2 cm. x bone deep situated 2 cm. below Injury No. 2 on left side of neck. Underlying tissues, muscles external and internal carotid arteries cut, lateral end of clavicle exposed. Clotted blood was present.” 23. As per the doctor, all the three injuries described above were ante-mortem in nature and were caused by sharp and hard object. All three injuries were sufficient to cause death. He opined that cause of death of deceased Kranti was excessive haemorrhage and shock as a result of injury to external and internal carotid arteries and fracture of c2 vertebrae. Mode of death was homicidal and duration was 6 to 18 hours since post-mortem. The post-mortem report is Ex.P/26, written and signed by him. In cross-examination on observing the Article-A (Axe) in court, he opined that all external injuries appeared on the bodies of Rashmi and Kranti which were mentioned by him in the reports may be caused by this weapon (Axe). 24. Shivnath Singh Bhadoria (PW-11) deposed that on 18th April, 2004, while he was posted as In-charge of the Police Station Survaya, he conducted the investigation of present crime. He stated that in night at around 3 o' clock, he received an information on phone by one Devendra Dhakad about commission of murder in the house of Chintulal in village Gangora. Shivnath Singh Bhadoria (PW-11) deposed that on 18th April, 2004, while he was posted as In-charge of the Police Station Survaya, he conducted the investigation of present crime. He stated that in night at around 3 o' clock, he received an information on phone by one Devendra Dhakad about commission of murder in the house of Chintulal in village Gangora. He reduced in writing the said information in the Daily Register (Roznamcha) of the police Station Thereafter, he reached the spot without delay. On the spot, on detailed oral report by Mithileshbai, he recorded a Dehati Nalish for offence punishable under sections 302 and 307 of Indian Penal Code vide Ex.P/1 against the accused and forwarded the same through a Constable Abdul Samad to Police Station for registration of the crime. He then by issuing the Safina Form (Ex.P/29) invited the witnesses for further investigation on the spot. In presence of witnesses, he prepared the memo of dead-body of Rashmi (Ex.P/5) and memo of dead-body of Kranti (Ex.P/4) and thereafter sent both the dead bodies for post-mortem to the District Hospital Shivpuri vide memos Ex.P/25-A and Ex.P/26-A. He, on the date of incident, collected the blood stained and simple soil from the spot vide seizure memo (Ex.P/31 and P/32). He also prepared the spot map on the direction of Mithileshbai, the complainant. On 18th April, 2004 he arrested accused Chintulal by arrest memo (Ex.P/13) and on his information recorded a Memorandum Ex.P/14 and seized the weapon of crime on production of the same by the accused from his agricultural field vide Ex.P/15. He recorded the case diary statements of the witnesses namely, Ratiram, Devendra, Mithileshbai and Shantibai on 18th April, 2004 and of Vijay Singh, Lakhan, Bharat and Rampratap on subsequent dates. Thereafter, he sent the seized articles relating to crime including Axe recovered from possession of the accused for examination to the State Forensic Science Laboratory. After investigation, he filed the charge-sheet before Criminal Court. 25. S.C. Saxena (PW-8), deposed that on 19th April, 2004 he was posted in the Police Station Kampu, district Gwalior. On that day, he inquired into Marg No. 159/04 and Marg No. 157/04, written by Head Constable Mahesh Chandra Shukla. After investigation, he filed the charge-sheet before Criminal Court. 25. S.C. Saxena (PW-8), deposed that on 19th April, 2004 he was posted in the Police Station Kampu, district Gwalior. On that day, he inquired into Marg No. 159/04 and Marg No. 157/04, written by Head Constable Mahesh Chandra Shukla. After inquiry, in presence of the witnesses he prepared the memo of dead-body of Rampyari vide Ex.P/11, memo of dead-body of Akash vide Ex.P/12 and then sent the dead-bodies for post-mortem by memo Ex.P/18 and Ex.P/19. He seized the sealed packets of articles received after post-mortem and thereafter sent the same to the concerning police station. 26. Thus, on perusal of the statement of eye-witness Mithleshbai (PW-1), daughter-in-law of the accused and mother of deceased two daughters and one son supports the prosecution version that on the date of incident, her two daughters with her father-in-law (accused) were sleeping at the roof of the house. Her mother-in-law with her son Akash was sleeping near staircase going to the roof while the witness with her one other son Rajkumar was sleeping in the Varandah adjacent to the staircase. On the fateful night, at around 2-30 p.m. she heard the cry of her mother-in-law that “killed-killed.” On seeing the incident she also cried. After hearing her cry, neighbouring persons, including Bharat, Lakhan and Vijay Singh reached the spot. She saw that her two daughters who were sleeping on the roof were killed. Her mother-in-law and one son were also seriously injured and killed. However, she was declared hostile by the prosecution because she did not state that her father-in-law caused serious injuries to her mother-in-law, her two daughters and a son and after incident she saw him (accused) coming down from the roof having an Axe in his hand. The reason for her hostility might be on account of involvement of her husband in defending the accused/father-in-law, who introduced himself as defence witness in trial. The trial Judge also noted the demeanour of the witness that she was under pressure of her husband. If a witness becomes hostile to subvert the judicial process, the court should not stand as a mute spectator and every effect should be made to bring home the truth. Criminal justice system cannot be overturned by those gullible witness, who acts under pressure, inducement or intimidation. [See: State vs. Sanjeev Nanda, (2012) 8 SCC 450 ]. If a witness becomes hostile to subvert the judicial process, the court should not stand as a mute spectator and every effect should be made to bring home the truth. Criminal justice system cannot be overturned by those gullible witness, who acts under pressure, inducement or intimidation. [See: State vs. Sanjeev Nanda, (2012) 8 SCC 450 ]. Therefore, on the basis of sole eye-witness, who is related to the deceased as well as accused and if under pressure she turned hostile so far as the involvement of accused in incident is concerned, that does not mean to reject the testimonies of other material witnesses whose presence was admitted by the eye-witness Mithileshbai (PW-1) vis-a-vis other evidence as on record. Bharat (PW-5), Lakhan (PW-6) who reached the spot on hearing hue and cry of Mithileshbai, just after the incident stated that they saw the scene of spot. By that time, Smt. Rampyari who was seriously injured was in senses and she informed to the these witnesses that her husband (Dada) inflicted the fatal injuries by an Axe to her granddaughters and grandson and on her body as well. As per medical report of Dr. Govind Singh (PW-3), the physical condition of the injured Rampyari at 4.20 a.m. on her medical examination on 18-4-2004 as mentioned by the doctor was to the effect that she was conscious with pulse 100 P/M, BP 100, R/R 28. which clearly shows that the general condition was not poor. So, the last statement of deceased Rampyari can be treated as her oral dying declaration to the present witnesses named above and the same cannot be ignored. 27. In the case of Bhairon Singh vs. State of Madhya Pradesh, (2009) 13 SCC 80 , the Hon'ble Apex Court has held as under:- “21. The rule embodied in section 6 is usually known as the rule of res gestae. What it means is that a fact which, though not in issue, is so connected with the fact in issue “as to form part of the same transaction” becomes relevant by itself. To form a particular statement as part of the same transaction utterances must be simultaneous with the incident or substantially contemporaneous that is made either during or immediately before or after its occurrence.” 28. To form a particular statement as part of the same transaction utterances must be simultaneous with the incident or substantially contemporaneous that is made either during or immediately before or after its occurrence.” 28. In the present case, the oral declaration by injured Rampyaribai, wife of accused Chintulal made to witnesses Bharat (PW-5), Lakhan (PW-6), who reached the spot after hearing hue and cry of Mithileshbai (PW-1), just after the incident and saw the scene of spot was to the effect that by that time she was conscious in disclosing the theory of the incident to the witnesses aforesaid, which was corroborated by the MLC report prepared by the doctor. Subsequently, during treatment she succumbed to injuries. Therefore, her declaration made to the witnesses comes within the purview of res gestae, which is admissible in evidence. Same is also well supported by other witnesses including medical evidence on record. 29. Now, on going to consider the defence put forth by the accused, a different story comes that on a fateful night, some unknown miscreants came inside the house and caused injuries to his grandchildren Rashmi, Kranti, Aakash and his own wife Rampyari, who succumbed to injuries. The accused further stated that in the incident his grandson and he himself sustained injuries. His plea of defence is supported by the complainant Mithileshbai (PW-1) and his son Prakash (DW-2). The injury which was said to have been sustained by him during incident was examined by the Medical Officer after his arrest. The medical report (Ex.D/3) submitted on record reveals that on 18th April, 2004 at about 1 p.m. he was examined by the doctor who found one incised wound on left leg medially longitudinal ad-measuring 3” x ½” x ½” with bleeding. The shoes were also stained with blood. The said injury was found to be simple in nature and caused by sharp and hard object. However, during examination of the complainant Mithileshbai before the court, she did not state whether she saw any miscreant on the spot at the time of incident. Other witness Smt. Shantibai (PW-3) who reached the spot immediately on hearing hue and cry of complainant Mithileshbai and injured Rampyari, did not claim to have seen any other miscreants on the spot. However, during examination of the complainant Mithileshbai before the court, she did not state whether she saw any miscreant on the spot at the time of incident. Other witness Smt. Shantibai (PW-3) who reached the spot immediately on hearing hue and cry of complainant Mithileshbai and injured Rampyari, did not claim to have seen any other miscreants on the spot. Defence witness Prakash (DW-2), husband of the complainant was said to be out of his residence at the time of incident and he reached the spot much later of the incident. So, the defence taken by the accused is not convincing on the point that the incident was caused by other miscreants. In Sanjiv Kumar vs. State of Punjab, (2009) 16 SCC 487 , the Hon'ble Apex Court has been pleased to observe in such matters:- “It has been observed that defence witnesses are often untruthful, but that is not to say that in all cases defence witnesses must be held to be untruthful, merely because they support the case of the accused. The right given to the appellant to explain the incriminating circumstances appearing against him serves a purpose, and cannot be ignored outright. In every case the court has to see whether the defence set up by the accused is probable, having regard to the totality of the facts and circumstances of the case. If the defence appears to be probable, the court may accept such defence. This is primarily a matter of appreciation of evidence on record and no straitjacket formula can be enunciated in this regard.” 30. That apart, the injury found at the time of his examination by the Medical Officer, after arrest of the accused, comparatively to the deceased seems to be simple in nature which demonstrates that the accused in order to fly away from the legal punishment, has built up a new story. Therefore, on this ground the accused cannot be held entitled to acquittal. In Bable vs. State of Chhattisgarh, (2012) 11 SCC 181 , at Page 188 the Hon'ble Apex Court held:- “In the present case, the accused had opted to give an explanation, as aforenoticed. It was for the accused to satisfy the court that his explanation was true and correct. Both the courts below have concurrently rejected the explanation offered by the accused. On the contrary, they have found the said explanation to be factually incorrect. It was for the accused to satisfy the court that his explanation was true and correct. Both the courts below have concurrently rejected the explanation offered by the accused. On the contrary, they have found the said explanation to be factually incorrect. It was for the prosecution to explain the injuries on the person of the appellant as to when, how and by whom they were inflicted as also the fact whether they were inflicted during the occurrence in question or elsewhere? Of course, the prosecution has not rendered any explanation as to how the appellant had suffered these injuries but that by itself is not sufficient to believe that the appellant is innocent and the explanation rendered by him is established ipso facto. The onus is still on the appellant-accused to prove that his explanation is correct and in accordance with law.” 31. As regards the motive behind the incident, it has come in the evidence of the witnesses that accused Chintulal was much worried about the expenses of the marriage of his granddaughter Rashmi because the villagers who earlier promised him declined to support. The accused appellant had thus developed a strong feeling of annoyance against his granddaughter Rashmi which continued up to causing death of other three persons. 32. In such a situation, in the opinion of this court, where such type of evidence has come on record, certainly the case would be covered by Clause Thirdly of section 300 and in that eventuality the conviction of accused under section 302 of Indian Penal Code would be proper. The medical evidence showed that almost injuries were situated on the neck region. In such a factual matrix, in our view, both the components necessary for invoking clause Thirdly of section 300 Indian Penal Code exist in the instant case. Since the accused inflicted grievous injuries on the persons of the deceased, the conviction recorded against him for the offence punishable under section 302 of Indian Penal Code is held proper. The present case is not a case of sudden fight nor the act has been done in a heat of passion. As a matter of fact, the appellant had a previous existing malice against the deceased. 33. Resultantly, the appeal fails and is dismissed accordingly.