JUDGMENT : (Delivered by Hon'ble Umesh Chandra Srivastava,J) 1. This appeal has been filed against judgement and order dated 20.9.1983 of IInd Additional Sessions Judge, Rampur passed in S.T. No.19 of 1981,State v. Nanhey Ali and others, arising out of Case Crime No. 302 of 1980, Police Station Bilaspur, district Rampur by which appellants Ashiq Ali and Nabi Husain along with six others had been convicted and sentenced with two years R.I. under section 148 IPC, life imprisonment under section 302 read with section 149 IPC, ten years R.I. and Rs.1,000/- fine and in default one year imprisonment under section 460 IPC and one year R.I. under section 323 read with section 149 IPC. 2. Facts giving rise to appeal in brief are as under :- 3. In the intervening night of 5/6 October, 1980 at 12 o'clock, Nanhey Ali being armed with SBBL gun, Ashiq Ali, Jamat Ali and Tufail Ahmad being armed with Tabal, Nabi Husain, Chunnu Khan and Salawat Khan being armed with country made pistol and Nabi Shah along with four or five others being armed with lathi came to the house of Roop Chand and caused injuries with their respective weapon as a result all three sons of Roop Chand, namely, Rajaram, Om Prakash and Godey Lal died on the spot in their house and their mother Smt. Chaina also received injury of firearm on her back. Besides Smt. Chaina and other inmates of the house, above incident was witnessed by Ram Swaroop, Sukhi @ Sukhpal, Govind, Ram Prasad, Hulasi and Hari Ram also in the light of lantern which was burning inside the house and torch which Ram Swaroop and Hari Ram were carrying in their hands and flashing. 4. It was stated that an incident of maar-peet had taken place between Rajaram, Om Prakash, Gondey Lal (all deceased) and Ram Swaroop on one side and Nanhey Ali, his brothers and other accused on other side about five years ago in respect of which case was filed from both sides and those cases were decided 8-10 months ago in which both parties were acquitted. It was further stated that Nanhey Ali and his companions bore grudge and enmity with the deceased family on account of that and for that reason they committed the offence of murder of three real brothers in their house by causing injuries to them by deadly weapons. 5. It was further stated that Nanhey Ali and his companions bore grudge and enmity with the deceased family on account of that and for that reason they committed the offence of murder of three real brothers in their house by causing injuries to them by deadly weapons. 5. The incident was reported to Police by Ram Swaroop, cousin brother of deceased on 6.10.1980 at 7.30 a.m. which was investigated and after investigation charge sheet was submitted against named accused persons and two more, namely, Subedar Khan and Saheb Khan who were identified by the witnesses in jail in identification parade. Appellants along with nine others were tried for the offences under sections 147,148,302 read with section 149 IPC , 460 and 323 read with section 149 IPC. 6. The prosecution examined nineteen witnesses, PW-1 Ram Swaroop, PW-2 Sukh Lal, PW-3 Smt. Chaina, PW-4 Dallo, PW-5 Hari Ram, PW-6 S.I. S.S.Chauhan, PW-7 Nomi Ram Pradhan, PW-8 H.C. Yad Ram Singh, PW-9 S.I. B.P.Singh, PW-10 HCP Shiv Kumar, PW-11 Ram Prasad, PW-12 Govind Ram, PW-13 Raghuveer, PW-14 Raees, PW-15 Moli, PW-16 C.P. Chandra Pal, PW-17 C.P. Sheopal Singh, PW-18 Hulasi and PW-19- K.P. Singh, the Investigating Officer, to prove the charges. 7. Besides oral evidence, prosecution also tendered post mortem reports of Om Prakash, Gondey Lal and Rajaram marked as Ex.Ka-42, 43 and 44 and injury report of Smt. Chaina marked Ex.Ka-45. 8. Dr. R.K.Agarwal, had conducted autopsy of deceased brothers. As per post mortem report Ex.Ka-42, deceased Om Prakash had following fifteen ante mortem injuries on his body:- 1. incised wound 9 cm x1.1/2 cm brain cavity deep on middle or sculp in oblique direction(towards left ear) 8 cm. above the root of nose, under lying bones of skull cuts; 2. Incised wound 8 cm x 1 cm bone deep in right mastaid region behind right ears underneath bones cut; 3. Incised wound 6 cm. x 1 cm x bone 4 cm. above injury no.1 on top of head bones cut; 4. Incised wound 4 cm x ½ cm x sculp on back of Head, right side, 10 cm away right ear; 5. Abrasion 2 cm. x ½ cm. on back of left elbow joint. 6. Abrasion 2 cm. x ½ cm. on upper and outer part of left thigh 8 cm. below the left super-orilac spine; 7. Multiple abrasions in an area of 17 cm. x 10 cm. Abrasion 2 cm. x ½ cm. on back of left elbow joint. 6. Abrasion 2 cm. x ½ cm. on upper and outer part of left thigh 8 cm. below the left super-orilac spine; 7. Multiple abrasions in an area of 17 cm. x 10 cm. on outer part of lower and middle part of left thigh size ¼ cm. x ¼ cm. to 10 cm. x ¼ cm.; 8. Incised wound 1 cm x ½ cm. x skin on outer part of left knee joint. 9. Abrasion 4 cm. x ½ cm. on outer & middle part of left leg transverse in direction. 10. Incised wound 4 cm. x 1 cm. x bone deep on out part of left ankle bone cut; 11. Multiple abrasions in an area of 12cm. X 7 cm. infront & outer part of right leg middle and lower part. 12. Incised would 2 cm. x ½ cm. x muscle outer and middle part of right leg. 13. Abrasion 6 cm. x linear on back and upper part of right leg; 14. Multiple abrasions on back in an area of 32 cm. x 23 cm. ranging in size ¼ cm. ¼ cm. to 12 cm. x ½ cm.; 15. Gun shot wound of entry (one)with irregular & lacerated edges more or less in circular 3 cm. x 3 cm. x chest cavity deep on right side of back just below the scapull. Skin surrounding the would is blackened scorched & tattored Margins inversted. As per opinion of Doctor, death of deceased was caused due to shock and hemorrhage. Similarly, as per post mortem report of deceased Godey Lal, Ex.Ka 43, he had following nine ante mortem injuries on his body:- 1. Incised wound 11 cm. x 4 cm x brain cavity deep on left side Head. Starting from inner angle of left eye continuous upto upper and lower part of Head. Oblique indirection(Brain matter coming out); 2. Incised wound 14 cm. x 5 cm. x brain cavity deep starting from the lower end of injury no.1 upto a point 1 cm. away behind left longitudinal in direction in both injury no.1 and 2 communicated with each other. Skull bones fractured in multiple pieces. Frontal, Perital temporal, occipital on left side fractured under injury no. 1 and 2. 3. Incised wound 8 x 1 cm. x bone starting from the Tragens of left ear. away behind left longitudinal in direction in both injury no.1 and 2 communicated with each other. Skull bones fractured in multiple pieces. Frontal, Perital temporal, occipital on left side fractured under injury no. 1 and 2. 3. Incised wound 8 x 1 cm. x bone starting from the Tragens of left ear. Each wound upwards and continued upto injury no.1 bones fractured. Bones of skull also showing cut marks. 4. Multiple gun shot wound scattered in an area of 12cm. X 1 cm. on right side chest and under auxiliary line 3 cm. below right nipple circular and oral in shape. ¼ cm. x ¼ cm. margin ¼ cm. 1 ¼ cm. on irregular, each wound lacerated, deep into skin muscles and chest cavity. Margins inverted. Gun shot wounds of entrance. 5. Gun shot wound of entry 10 cm. x 5 cm. on right side back below scapular 11 cm. away the verternal column. Margins inverted, lacerated each wound directed downwards and inwards lacerating the upper and back surface of lince in its right lo-be. Blackening scortching and tatooing present on skin on the wounds. 6. Gun shots wound of entry 1 ½ cm. x 1 ½ cm. on left side back below scapulla, 2 cm. away other verternal column, circular margins irregular, skin scroached, tatood blackened round the wound. Directed inwards lacerating the heart and left lung almost completely. 7. Large irregular wound (gun shot wound) 10 cm. x 7 cm. on front and lower middle part of left forearm. Both bones fractured. Skin cut and its tissue and muscle lacerated Margins of skin inverted, irregular scorched, tatooing present and blackened directed obliquely and upwards. 8. Large irregular wound (gun shot wounds) 9cm. X 4 cm. bone on front of left knee directed inwards and downwards. Bone portion fractured, skin cut tissue and muscle lacerated. Skin blackend, tatood and scortched. 9. Multiple gun shot wounds of entry in an area of 11 cm. x 5 cm. on upper inner and front part of right leg. Circular and oval in shape ¼ cm. x ¼ cm. , ½ cm. x ¼ cm. muscle deep . As per opinion of Doctor, death of deceased was caused due to shock and hemorrhage. Similarly, as per post mortem report of deceased Raja Ram, Ex.Ka 44, he had following four ante mortem injuries on his body:- 1. Circular and oval in shape ¼ cm. x ¼ cm. , ½ cm. x ¼ cm. muscle deep . As per opinion of Doctor, death of deceased was caused due to shock and hemorrhage. Similarly, as per post mortem report of deceased Raja Ram, Ex.Ka 44, he had following four ante mortem injuries on his body:- 1. Gun shot wound of entry 3 cm x 1 ½ cm. into chest cavity deep on upper part of right side back just below the scapulla oval in shape, directed inwards and upwards. The edges of wounds inverted, irregular ecchhymosed lacerated skin surrounding the wounds is blackened schorched and tatood. 2. Gun shot wounds of Exits five in no.- ½ cm,. In diameter in an area of 7 cm. x 5 cm. x chest cavity deep communicating with injury no.1 on root of neck on left side neck just above the left clavicle. Margins everted lacerated irregular ecchymosed no blackening and tattooing. 3. L.W. ½ cm. x ½ cm. x muscle on upper and outer part of left shoulder. 4. Abrasion 1 ½ cm. x 1 cm. on top of left shoulder one rounded bullet protruding under the skin 5 cm. above injury no.4. Skin was cut by knife and the bullet was recovered. As per opinion of Doctor death of deceased was caused due to shock and hemorrhage as a result of gun shot wound. 9. The appellants along with nine others denied the prosecution case and the evidence led in this regard and they submitted that they did not commit the offence as alleged, three real brothers were killed in the process of commission of dacoity that had taken place in their house in the intervening night of 5/6 October, 1980 and dacoits being not identified by the inmates of the house, appellants and other accused were falsely implicated on account of enmity. They also examined DW-1 Chain Singh and DW-2 Dr. Hameed Ullah in their defence. 10. One of the accused Salawat Khan died during pendency of trial with the result, case stood abated against him and only ten faced trial. 11. The learned Addl. They also examined DW-1 Chain Singh and DW-2 Dr. Hameed Ullah in their defence. 10. One of the accused Salawat Khan died during pendency of trial with the result, case stood abated against him and only ten faced trial. 11. The learned Addl. Sessions Judge, after having heard the submissions of learned counsel of both sides and having considered the evidence on record, came to conclusion that three real brothers were not killed in process of commission of dacoity as stated by defence, they were done to death by appellants and their companions in order to take revenge of maar-peet that had taken place five years ago in respect of which criminal case was filed and proceeded from both sides and both parties were acquitted. The learned Addl. Sessions Judge after having carefully adjudged the evidence on record also came to conclusion that charges against Nanhey Ali, Ashiq Ali, Jamal Ali, Nabi Husain, Chunnu Khan and Ahmad Noor were proved beyond doubt, and as regards Tufail Ahmad, Nabi Shah, Subedar Khan and Saheb Khan, it were not proved beyond reasonable doubt, therefore, he convicted accused Nanhey Ali, Ashiq Ali, Jamal Ali, Nabi Husain, Chunnu Khan and, Ahmad Noor only for the offences under section 148, 302 read with section 149, 460 and 302 read with section 149 IPC and sentenced them with punishment stated above and acquitted accused Tufail Ahmad, Nabi Shah, Subedar Khan and Saheb Khan in all offences by his judgement and order dated 20.9.83 against which Nanhey Ali, Ashiq Ali, Nabi Husain, Chunnu Khan filed the present appeal and Ahmad Noor and Salawat Khan filed Criminal Appeal No. 2259 of 1983. Nanhey Ali and Chunnu Khan having died during pendency of appeal, appeal stood abated against both of them and, present appeal is now being contested by Ashiq Ali and Nabi Husain, the only live convicts. 12. Ahmad Noor and Salawat Khan also died during pendency of appeal with the result Appeal No. 2259 of 1983 stood abated. 13. We have heard Sri N.I. Jafri, learned counsel for the appellants, Sri Vikas Sahai, learned AGA for the State and perused the record. 14. 12. Ahmad Noor and Salawat Khan also died during pendency of appeal with the result Appeal No. 2259 of 1983 stood abated. 13. We have heard Sri N.I. Jafri, learned counsel for the appellants, Sri Vikas Sahai, learned AGA for the State and perused the record. 14. Learned counsel for the appellants has submitted that judgment and order passed by the learned court below convicting appellants and other accused for the offences under section 148,302 read with section 149 IPC, 460 and 323 read with section 149 IPC are bad in law. He has further submitted that learned court below has failed to take the fact into consideration that there was no immediate reason for appellants and other accused for committing the offence which involved murder of three real brothers. The motive which has been set up by the prosecution relates back to an incident which had taken place between the parties five years ago in respect of which both parties had filed case against each other and both parties were acquitted. It was a case of simple maar-peet and thereafter nothing happened between the parties so that it could be said that accused Nanhey Ali and his companions continued grudge they bore and committed murder of three real brothers in their house in the night by attacking upon them with deadly weapons. He has further submitted that for committing offence of murder involving death of three persons the motive should be very strong as it is against human nature to commit such a heinous crime for a trivial issue. 15. Learned counsel for the appellants has further submitted that learned court below while believing the evidence of fact witnesses, mainly of PW-3 Smt. Chaina, PW-4 Smt. Dallo and PW-13 Raghuveer has failed to take note of the fact that they are inter related witnesses and therefore their evidence has to be looked into with great care and caution. 15. Learned counsel for the appellants has further submitted that learned court below while believing the evidence of fact witnesses, mainly of PW-3 Smt. Chaina, PW-4 Smt. Dallo and PW-13 Raghuveer has failed to take note of the fact that they are inter related witnesses and therefore their evidence has to be looked into with great care and caution. It also failed to take note of this fact that PW-3 Smt. Chaina, the mother of three deceased brothers was eighty years old who had grown up by her eyes on account of her age and therefore, it was not possible for her to identify and recognize the culprits in midnight in the light of lantern which was not burning near the place where deceased were killed rather it was allegedly burning in Verandah which was situated at a considerable good distance from the places deceased were killed. Learned court below has also failed to take note of the fact that she was medically examined after 15 hours of the occurrence and the Doctor who had examined her was not examined. He has submitted that the Doctor who medically examined Smt. Chaina was purposely withheld because prosecution did not want that truth should come out. If the Doctor would have been examined then he would be questioned if injuries sustained would possibly come from the alleged weapon and in event of answer being negative her entire evidence would become unreliable. 16. The learned court below also failed to take the fact into account that Smt. Chaina was not facing the culprits from her front at the time of incident as in case of having faced the culprits from front the injuries sustained would be on front side and not on back as it were. He has submitted that when she was not facing the culprits from front side but from her back side it could not be possible for her to identify and recognize the culprits that too in a dark night in light of a lantern which was allegedly burning at a considerably good distance and she had grown up by eyes. 17. Learned counsel for the appellants has further submitted that learned court below has also failed to consider that Smt. Chaina had refused to take oath while being examined in court. 17. Learned counsel for the appellants has further submitted that learned court below has also failed to consider that Smt. Chaina had refused to take oath while being examined in court. He has submitted that the act of the witness refusing to take oath is indicative of the fact that she being of old age did not want to tell a lie after taking oath and for that reason she refused to take oath. The learned court below also failed to consider that she had not recognized accused Chunnu in court while she was being examined with a lame excuse that she had grown up with her eyes after the incident. 18. Learned counsel for the appellants has further submitted that learned court below has failed to consider that Smt. Chaina has no where stated that her daughter-in-law PW-4 Smt. Dallo and her grandson PW-13 Raghuveer were also present near the place of occurrence and had seen the occurrence. He has submitted that if both witnesses would be present and seen the incident Smt. Chaina would certainly state this fact in her evidence and in that case evidence of PW-4 Smt. Dallo in which she has said that she had seen appellants along with other accused armed with their respective weapons causing injuries to deceased becomes meaningless. 19. Learned counsel for the appellants has further submitted that learned court below has also failed to take note of the fact that PW-13 Raghuveer was only six years old when incident took place and at such age it was not possible for him to narrate the incident in a detailed manner he has narrated in his evidence. He has submitted that on perusal of evidence of PW-13 Raghuveer it appears that he is not a natural witness rather tutored one and in that case his evidence is not reliable. 20. Learned counsel for the appellants has further submitted that learned court below has also failed to take note of the fact that PW-1 Ram Swaroop, cousin brother of three deceased brothers per his own statement was at his home and had reached at the door of house of deceased brothers after hearing alarm and hue and cry coming from the house of deceased. He has submitted that this witness does not say that he had entered into house of deceased and seen the incident from inside the house, rather his evidence in this regard is that he had seen the incident from the main door of the house of deceased brothers which is situated at a considerable good distance from the places of occurrence and in that case it could not be possible for him to identify and recognize the culprits in light of torch light which he and another witness Hari Ram were allegedly flashing. 21. Similarly, learned court below has failed to take note of the fact that PW -5 Hari Ram and PW-18 Hulasi are not the residents of same village in which incident occurred, but they are residents of Aurang Nagar Kheda which is at a distance of one mile from the place of occurrence. Learned court below has also failed to take note of the fact that reasons assigned by them for being present in village of deceased brothers in the intervening night of 5/6.10.1980 is unnatural as if they had gone to Kasba Bilaspur for marketing, there could be less probability for them staying at Chaupal of Sukhi @ Sukhpal in the night of incident which is hardly at a distance of one mile from their house. Further, learned court below has also failed to take note of the fact that PW-5 and 18 also did not claim they had entered into house of deceased brothers during process of incident but their contention in this regard was also like PW-1 Ram Swaroop that they had seen appellants along with other accused causing injuries to deceased in the light of lantern which was burning inside the house and torch which was being flashed by Ram Swaroop and Hari Ram from the door of house of deceased. 22. Learned counsel for the appellants has further submitted that learned court below has also failed to consider that PW-2 Sukh Lal, PW-11 Ram Prasad and PW-12 Govind, who claim to have reached at the door of house of deceased brothers in the intervening night of 5/6.10.1980 at 12 o'clock after hearing alarm and sound of shot fires coming from the house of deceased brothers have not supported the prosecution but they have turned hostile saying they had not recognized the culprits who caused injuries to deceased brothers. 23. 23. Learned counsel for the appellants has further submitted that it is unfortunate that three real brothers were done to death inside their house in the intervening night of 5/6.10.1980, however, considering the facts and circumstances of the case the possibility of dacoity having taken place in the house of deceased brothers could not be ruled out and it could also not be ruled out that three real brothers were killed by some dacoits during the process of commission of dacoity and dacoits being not identified and recognized by the inmates of the house, a false FIR was lodged naming appellants and others on account of enmity. He has submitted that when questions were put to inmates of the house and other witnesses during their cross-examination in court, they evasively denied the factum of dacoity having taken place in the house of deceased brothers without any cogent reason. He has submitted that in a case where some one is to be punished in an offence like murder which is punishable with death/life imprisonment, it is the duty of court to see that guilt is proved beyond all reasonable doubts and in the event of slightest possibility of doubt accused should be acquitted of the charge giving him benefit of doubt, which was not done in the present case. 24. Learned counsel for the appellants has further submitted that it has come in the evidence of PW-1 Ram Swaroop, PW-3 Smt. Chaina and PW-4 Smt. Dallo that after having heard the sound of shot fires and alarm and hue and cry coming from the house of deceased brothers they immediately realized that appellants along with other accused have attacked. He has further submitted that this statement of first informant and inmates of the house clearly goes to show that first informant and inmates of the house of deceased brothers had already made up their mind to implicate appellants and other accused in the case, and for this reason, after incident having taken place involving death of three real brothers in the night, a report implicating appellants and other accused for the incident was lodged. 25. 25. In reply, learned AGA has submitted that it is established from the evidence on record that an incident of mar-peet had taken place between first informant Ram Swaroop and deceased brothers on one side and Nanhey Ali and his brothers on other side five years age in respect of which both parties had filed case against each other and both the cases had ended in acquittal. He has further submitted that this is indicative of fact that Nanhey Ali and his brothers bore grudge and enmity against deceased brothers and their family. Learned AGA has further submitted that Nanhey Ali and his brothers had also offered threat to first informant and deceased brothers with dire consequences four-five days before the incident which is established from the statement of PW-1 Ram Swaroop. He has submitted that this makes it clear that Nanhey Ali, his brothers and their companions had reason to commit the offence and, once the motive is proved, it hardly makes any matter whether it is weak or strong as it is not necessary that there should always be a strong motive for committing the offence of murder. Murder is committed even at spur of moment without there being any reason, therefore, so far as the present case is concerned, if motive pleaded against appellants and other accused for entering into house of deceased brothers, being armed with deadly weapons and committing murder of three real brother is proved, learned court below cannot be said to have committed any error in believing the same and convicting the appellants and other accused. 26. Learned AGA has further submitted that PW-3 Smt. Chaina, PW-4 Smt. Dallo and PW-13 Raghuveer being inmates of the house in which incident took place are natural witnesses and their testimonies cannot be discarded on the reason that they are inter-related witnesses. He has submitted that this is not the case of appellants that above witnesses were not present at house in the intervening night of 5/6.10.1980 when the incident took place in which three real brothers were done to death. The testimonies of these witnesses are not liable to be dis-believed on the reason that on account of their positioning as well as of light they could not be able to identify/recognize the culprits who done deceased brothers to death. The testimonies of these witnesses are not liable to be dis-believed on the reason that on account of their positioning as well as of light they could not be able to identify/recognize the culprits who done deceased brothers to death. The testimony of PW-3 Smt. Chaina cannot be dis-believed on the reason that she being an old lady of eighty years and grown up with her eyes she could not be able to identify/recognize the culprits. She cannot be dis-believed on this reason also that she had refused to take oath when she was examined in court, she was not medically examined then and there but her medical examination was done after 15 hours of occurrence and Doctor who medically examined was not produced as witness to prove her injuries. He has submitted that after having admitted the genuineness of medical report marked Ex.Ka-45 , it does not lie to the mouth of defence to doubt the injuries sustained by the witness. 27. Learned AGA has further submitted that there is nothing on record to assume that PW-3 Smt. Chaina was facing culprits from her back side during the process of incident nor on account of seat of her injuries any such presumption could be drawn. He has further submitted that it is established from the statement of PW-4 Smt. Dallo that appellants and other accused wanted to kill her son and when in process of that they shot fire at him it missed and hit her mother-in-law Smt. Chaina. Submission is that when shot was not fired pointing at Smt. Chaina but it was fired aiming at Raghuveer, the only survived male member of the family of deceased brothers but missed and hit Smt. Chaina, defence on account of seat of injury received cannot raise presumption that Smt. Chaina was facing the culprits from her back side and not from her front side and therefore it was not possible for her to identify and recognize the culprits. 28. Learned AGA has also submitted that testimony of Smt. Chaina cannot be dis-believed on this reason also that she could not recognize Chunnu in court as she has explained about it saying she having grown up by her eyes after the incident she could not recognize him in court. 29. 28. Learned AGA has also submitted that testimony of Smt. Chaina cannot be dis-believed on this reason also that she could not recognize Chunnu in court as she has explained about it saying she having grown up by her eyes after the incident she could not recognize him in court. 29. Learned AGA has further submitted that testimony of PW-4 Smt. Dallo cannot be dis-believed on account of discrepancy occurred in statement of her and her son with regard to place she was sleeping in the intervening night of 5/6.10.1980. His submission is that it hardly matters whether she was sleeping inside the Kothri or in Dalan along with her son on a separate cot. Kothri being the part of house having opening in Dalaan and incident having taken place in court yard and in room of husk, she had every chance to witness the incident and identify/recognize the culprits also as a lantern was burning in Dalan and torches were also being flashed from the main door of the house and most of the culprits were of her own village whom she knew very well. The testimony of this witness cannot be dis-believed on this reason also that PW-3 Smt. Chaina has said nothing in her statement regarding her presence at the place of occurrence during the process of incident. His submission is that Smt. Chaina has no where denied her presence near place of occurrence at the time of incident and if Smt. Dallo who is the inmate of the house and wife of one of deceased has said that she had recognized the culprits causing injuries to her husband and brothers-in-law in light of lantern and torch there is no reason to disbelieve it. 30. Learned AGA has further submitted that testimony of PW-13 Raghuveer, a child witness can also not be dis-believed that he was only six years old when occurrence took place. His testimony cannot be dis-believed on account of being tutored, as he being present at the place of occurrence along with his mother and having seen the incident and identified the culprits also as most of culprits were of his village, his testimony instead of being disbelieved on account of being a child would be believed more so when it finds support from eye witness account of other witnesses also. 31. 31. As regards PW-1 Ram Swaroop, PW-5 Hari Ram and PW-18 Hulasi, the learned AGA has submitted that they are being wrongly claimed chance witnesses. PW-1 Ram Swaroop being cousin brother of deceased brothers having his house in the same vicinity, if he has said to have immediately reached the place of occurrence after hearing the shots fire and hue and cry coming out from the house of deceased brothers and having seen appellants and other accused causing injuries to deceased brothers with deadly weapons from the main door of house of deceased in the light of lantern which was burning inside the house and the torch which he and Hari Ram were carrying and flashing also, there being nothing unusual in it his testimony would be believed. 32. PW-5 Hari Ram and PW-18 Hulasi are no doubt are not the residents of same village in which incident took place. They are the residents of other village. They have stated that on 5.10.1980 they had gone to Quasba Bilaspur for marketing and while returning home, instead of going to their village in night they stayed at Chaupal of Sukh Lal @ Sukhi due to late night. They have further stated that in the night of 5/6.10.1980 they had heard the shot fire and hue and cry coming from the house of deceased and after hearing the same had proceeded to the house of deceased along with Sukh Lal @ Sukhi, Ram Swaroop and Govind and seen appellants and other accused causing injuries to deceased brothers with deadly weapons. The learned AGA has further submitted that though Sukh Lal @ Sukhi who has been examined as PW-2 has not supported the prosecution, however, he has also stated that after hearing alarm and hue and cry coming from the house of Gondey Lal in the intervening night of 5/6.10.1980 he had gone to the house of deceased along with Hari Ram, Hulasi, Ram Swaroop, Ram Prasad and Govind but could not identify the culprits as by the time he arrived there, the culprits were running from the house and therefore he could not identify/recognize them. From his evidence also it is proved that PW-5 Hari Ram and PW-18 Hulasi were staying at his chaupal in the night of incident and therefore if they have said that after having heard the shot fire, alarm and hue and cry coming from the house of deceased brothers they had reached the house of deceased along with other witnesses and seen the occurrence happening before them and identified the appellants and other accused in light of lantern which was burning inside the house and torch which one of them Hari Ram and Ram Swaroop were flashing, their evidence cannot be disbelieved calling them chance witness on account of being residents of other village. 33. As regards hostile witnesses PW-2 Sukh Lal @ Sukhi, PW-11 Ram Prasad and PW-12 Govind, learned AGA has submitted that though they have not supported the prosecution saying they had not identified the culprits including appellants at the time of incident, however, prosecution finds support from their evidence also. They have not denied reaching at the door of house of deceased after having heard the shot fire, alarm and hue and cry coming from the house of deceased along with Ram Swaroop, Hari Ram, and Hulasi. This makes the prosecution case proved that Hari Ram and Hulasi are not lier and therefore if Hari Ram and Hulasi have stated to have stayed at Chaupal of Sukh Lal @ Sukhi in the night of 5/6.10.1980 and reached at the door of deceased after hearing the shot fire and hue and cry and identified/recognized the culprits including the appellants in the light of lantern which was burning inside the house and torch which Ram Swaroop and one of them Hari Ram were flashing, that would be believed. 34. Thus, from the evidence of hostile witnesses PW-2, 11 and 12 also it is proved that a lantern was burning inside the house of deceased at the time of incident and PW-1 Ram Swaroop and PW-5 Hari Ram were carrying torch in their hands when they reached at the house of deceased after hearing shot fire and were flashing it also. This gets the prosecution case proved that there was sufficient source of light at the place of occurrence at the time of incident and culprits could be identified in that light and in that case evidence of PW -3 Smt. Chaina, PW-4 Dallo, PW-13 Raghuveer in which they have said they had identified/recognized the culprits including appellants also gets proved. 35. Learned AGA has further submitted that there is no force in the contention of learned counsel for the appellants that deceased brothers were not done to death by appellants and other accused but they were killed in an incident of dacoity that had taken place in their house. His submission is that had it been a case of dacoity then dacoits would not kill only male members of the house they would kill any one coming in their way whether male or female and they would commit loot of house hold goods also. Since nothing had been looted from the house of deceased and only male members had been killed and even effort was made to kill the only alive male child also who was six years old, this gives rise to only presumption that incident in question was not an act of dacoity nor deceased brothers were killed by unidentified dacoits, rather it was an act of commission of murder committed by appellants and other accused by entering into house of deceased in the intervening night of 5/6.10.1980 at midnight and causing injuries to deceased brothers with deadly weapons which is supported with medical evidence also, as in postmortem examination out of fifteen ante-mortem injuries found on the person of deceased Om Prakash one was of firearm, out of nine ante-mortem injuries found on the person of Gondey Lal six were gun shot injuries and out of three injuries on the person of Rajaram two were gun shot wounds. 36. Learned AGA has further submitted that there is no discrepancy in the evidence of prosecution witnesses so that finding of conviction recorded by learned court below could be set aside. 37. After having heard the submissions of learned counsel of both sides the admitted/established factual position that has been so emerging is that Rajaram, Om Prakash and Gondey Lal were real brothers who were done to death in the intervening night of 5/6.10.1980 by causing injuries to them with deadly weapons. 37. After having heard the submissions of learned counsel of both sides the admitted/established factual position that has been so emerging is that Rajaram, Om Prakash and Gondey Lal were real brothers who were done to death in the intervening night of 5/6.10.1980 by causing injuries to them with deadly weapons. All three deceased brothers had ante-mortem injuries of deadly weapons including fire arm. Accused Nanhey Ali, who died during pendency of appeal, Ashiq Ali and Jamat Ali, who died during pendency of trail are real brothers and accused Nabi Husain is the son of Jamat Ali. The further admitted position is that PW-3 Smt. Chaina is the mother of deceased brothers, PW-4 -Dallo is the wife of deceased Gondey Lal and PW-13 Raghuveer, the child witness is the son of Gondey Lal. The further admitted position is that PW-1 Ram Swaroop is the cousin brother of deceased brothers and PW-2 Sukh Lal @ Sukhi, PW- 11 Ram Prasad, PW-12 Govind are the residents of same village in which the incident took place. 38. The further admitted established position that has been so emerging is that a lantern was burning inside the house of deceased and PW-1 Ram Swaroop and PW-5 Hari Ram who claims to have reached at the door of house of deceased brothers at the time of incident had torch with them which they were flashing from the door during the process of commission of incident. The further admitted/established position that has been so merging is that five years ago an incident of maar-peet had taken place between first informant and deceased brothers on one side and Nanhey Ali and his brothers along with some accused on the other side in respect of which both parties had filed criminal case against each other which had ended in acquittal 8-10 months before the incident. 39. Submission of learned counsel for the appellants that motive set up by prosecution against appellants being not immediate and strong so that appellants along with co-accused could commit murder of three real brothers does not have force. 39. Submission of learned counsel for the appellants that motive set up by prosecution against appellants being not immediate and strong so that appellants along with co-accused could commit murder of three real brothers does not have force. When the factum of enmity on account of incident of mar-peet having taken place between parties is not denied by the appellants and other accused, rather it is admitted, it becomes meaningless that incident of maar-peet had taken place five years ago and in respect of which both parties had filed case against each other which had ended in acquittal. It is pertinent to mention here that PW-1 Ram Swaroop, the cousin brother of deceased brothers has specifically stated that appellants and other accused bore grudge against him and deceased brothers on account of incident of maar-peet that had taken place five years ago and they had also offered threat of dire consequences to them 4-5 days before the incident. It makes the motive set up against appellants and other accused for committing murder of three real brothers in the intervening night of 5/6.10.1980 by causing injuries to them with deadly weapons fully proved. 40. PW-3 Smt. Chaina, PW-4 Smt. Dallo and PW-13 Raghuveer being inmates of the house are natural witnesses. Their presence in house in the intervening night of 5/6.10.2018 has not been denied by the appellants and other accused. If these witnesses were present in house and they claim to have seen the incident by their own eyes in the light of lantern which was burning inside the house and torch which was being flashed by PW-1 Ram Swaroop and PW-5 Hari Ram from the door of house of deceased brothers at the time of occurrence, their testimonies could not be dis-believed on account of fact that they are inter-related witnesses. If any incident takes place inside the house, inmates of the house are the best witnesses who can tell about it. 41. The testimony of PW-3 Smt. Chaina, mother of deceased brothers cannot be dis-believed on the reason that she being lady of eighty years age and being grown up by her eyes due to her age she was not able to identify and recognise the culprits who caused the incident. Her testimony cannot be dis-believed on this reason also that she had refused to take oath while being examined in court. Her testimony cannot be dis-believed on this reason also that she had refused to take oath while being examined in court. Her testimony cannot be dis-believed for her injuries being medically examined 15 hours after the incident. Her testimony cannot be dis-believed for not producing the Doctor also who had examined her injuries. Her testimony cannot be dis-believed on the reason that she having received injuries on her back, she was not facing the culprits from her front side at the time of commission of offences. Once her presence on the spot at the time of occurrence is proved and she states that she had seen the incident and had also identified the culprits by her own eyes, and on account of having received fire arm injuries in the same incident she is an injured witness also, her testimony would be believed and if she has stated that she had identified appellants and other accused who caused injuries to her sons with deadly weapons as a result they died, prosecution case would be deemed proved on account of her testimony only. 42. The testimony of PW-4 Dallo is also liable to be believed. Her presence in house in the intervening night of 5/6.10.1980 is not denied by the appellants and other accused. She being wife of deceased Gondey Lal, her presence in house at the time of occurrence is very natural. It hardly matters whether in fateful night she was sleeping in dalan with her son Raghuveer on a separate cot or she was sleeping inside the Kothri adjoining to dalan. Even if it be believed that she was sleeping inside Kothri adjoining to dalan at the time of occurrence, it is very natural for her to have come out from Kothri after hearing the sound of shot fire. Therefore, if she has stated in her evidence that she had seen the occurrence and had also identified the appellants and other accused committing murder of her husband and her two brothers-in-law in the fateful night by causing injuries to them with deadly weapons, the same would be believed and taken to be true. 43. Therefore, if she has stated in her evidence that she had seen the occurrence and had also identified the appellants and other accused committing murder of her husband and her two brothers-in-law in the fateful night by causing injuries to them with deadly weapons, the same would be believed and taken to be true. 43. The testimony of PW-4 Dallo cannot be dis-believed on the reason that it has not come in statement of PW-3 Chaina that her daughter-n-law Smt. Dallo was also present on the spot at the time of occurrence and had identified and recognized the culprits in the light of lantern which was burning inside the house and torches which were being flashed from the main door of the house. If Smt. Chaina has not denied the presence of her daughter-in-law near place of occurrence at the time of incident, she is silent on this point in her eidence as she was not questioned on this point, her silence would not be taken otherwise nor on that account it could be presumed that in the fateful night she being slept in Kothri adjoining to Dalan and not in Dalan this could not be possible for her having come out and seen the incident happening in her presence and having identified the culprits in light of lantern that was burning in Dalan and torches which were being flashed from the main door of the house by the witnesses arrived there after hearing the shot fire and alarm and hue and cry coming from the house. 44. PW-13 Raghuveer is no doubt a child witness who was only six years old when incident took place. His mother PW-4 Smt. Dallo has specifically said about him that appellants and other accused had also tried to kill him by opening fire on him which missed and hit her mother-in-law on her back as a result of which her mother-in-law received injuries. Her testimony is supported with medical evidence as in medical report marked as Ex.Ka-45 fire arm injury has been shown to be found on the back of Smt. Chaina. This goes to show that child witness was also present near the place of occurrence and, so, if he has said that he had identified the culprits who caused the incident, there is nothing unusual or unnatural in it. This goes to show that child witness was also present near the place of occurrence and, so, if he has said that he had identified the culprits who caused the incident, there is nothing unusual or unnatural in it. The testimony of this witness cannot be discarded for having given detailed account of incident specifying the names of some culprits along with their respective weapons. A witness who has not seen the incident cannot give detailed account of incident. Even a tutored one cannot give nor he can stand on it during cross examination how strong tutoring be. Only a witness who has seen the incident by his eyes can give detailed account of an incident. So, if PW-13 has given detailed account of the incident and stood with it also during cross examination without being shaken his testimony would be believed instead of being disbelieved on account of alleged tutoring. 45. The testimony of PW-1 Ram Swaroop, PW-5 Hari Ram, and PW-8 Hulasi in which they have supported the prosecution saying they had seen the incident from the main door of house of deceased brothers in the light of lantern which was burning inside the house and torches which they were having and flashing and they also claim to have identified and recognized the culprits in light of lantern and torch, their testimony cannot be discarded on the reason that PW-5 and PW-18 being not the residents of same village but of other village , they are chance witnesses. Similarly, the testimony of PW-1 cannot be disbelieved on account of him being cousin brother of deceased. It is material to mention here that presence of these witnesses at the door of house of deceased brothers at the time of occurrence is not denied by the hostile witnesses also. PW-2 Sukh Lal @ Sukhi, PW-11 Ram Dularey and PW-12 Govind who have not supported the prosecution, they have turned hostile have specifically stated that when after hearing the shot fire, alarm and hue and cry coming from the house of deceased brothers they reached at the door of deceased brothers, PW-1 Ram Swaroop and PW-5 Hari Ram both having torch in their hands and Hulasi also reached there and at that time a lantern was burning inside the house. The testimony of hostile witnesses not only proves presence of Ram Swaroop, Hari Ram, and Hulasi at the door of house of deceased brothers at the time of incident but it also proves the source of light that was present at the place of occurrence when the incident took place and in which the culprits were identified and recognized by other witnesses. 46. The case of defence that appellants and other accused being armed with deadly weapon did not go to the house of deceased brothers in the intervening night of 5/6.10.2018 and caused injuries as a result three real brothers Rajaram, Om Prakash and Gondey Lal died on the spot, but they were done to death by unidentified dacoits in process of commission of dacoity that had taken place in the house and appellants and other accused have been falsely implicated on account of enmity is not liable to be accepted. Had it been an incident of dacoity then dacoits would not kill male members only of the house leaving females. In case of incident being of dacoity, the dacoits would have looted house hold goods also for which they had come, they would not go with empty hand. The dacoits would not attempt to kill son of deceased Gondey Lal who was only six years old by that time. If only male members of the house were done to death in the incident and nothing was looted from the house and even attempt was made to kill only male survivor of the house, this goes to prove beyond doubt that it was not an act of dacoity by unidentified dacoits in which three real brothers were done to death. It was a deliberate act of commission of murder in which three real brothers were killed by causing injuries to them with deadly weapons. 47. Thus on account of entire evidence on record it is proved beyond doubt that it were appellants and other accused namely Nanhey Ali, Chunnu Khan, Ahmad Noor and Salawat Khan who caused the incident by having active participation in it by causing injuries to deceased brothers with deadly weapons. 47. Thus on account of entire evidence on record it is proved beyond doubt that it were appellants and other accused namely Nanhey Ali, Chunnu Khan, Ahmad Noor and Salawat Khan who caused the incident by having active participation in it by causing injuries to deceased brothers with deadly weapons. Therefore, the finding of conviction recorded by the learned court below holding appellants and other accused Nanhey Ali, Chunnu Khan, Ahmad Noor and Salawat Khan guilty for the offences under sections 148, 302 read with section 149, 460 and 320 read with section 149 IPC is fully supported with evidence on record and needs no interference in appeal. 48. In the result appeal sans merit and is, therefore, dismissed. 49. Appellants Ashiq Ali and Nabi Husain are on bail, their bail bonds are cancelled and sureties are discharged. They are directed to surrender before the court below immediately for serving out the punishment, failing which learned court below shall take all necessary measures to secure their arrest and to get them lodged in jail. 50. Let a copy of judgment be sent to court concerned through concerned Sessions Judge for information and necessary action including compliance report at earliest.