JUDGMENT : Vikas Kunvar Srivastav, J. 1. These two criminal appeals arise out of the single judgment and order dated 3.5.1986 passed by the Learned special Judge, Unnao in Sessions Trial No.406 of 1985 under Section 302/34 and 307/34 I.P.C., Police Station-Maurawan, District-Unnao, whereby the accused/appellants have been convicted and sentenced to undergo imprisonment for life under Section 302/34 IPC and three years' rigorous imprisonment under Section 307/34 IPC. 2. The case of the prosecution in brief as emerging out from the contents of the F.I.R. and the evidences laid before the court is that the elder brother of the informant (Ram Praksh, PW-1) namely Sachidanand, resident of Village Korwa (Mawai), Police Station -Maurawan, District 'Unnao' was married to Meena Kumari, the daughter of accused appellant, Jatashankar in February 1983. Smt. Meena Kumari died of burn injuries as she caught fire while cooking food. Accused Jatashankar, his sons namely accused appellants Mukesh and Rakesh came under impression that the said Meena Kumari was intentionally burnt by her-in-laws. Consequently, the family of the accused persons developed tense relation with the informant's family on account of above incident. They used to remain in search of chance to take counter action against informant's family in vengeance. On 22.6.1985 at about 6:15 a.m. moving a written complaint, the informant Ramprakash informed the Station House Officer of Police Station-'Maurawan' that in the preceding night of 21/22.6.1985, when his father Ram Asrey, Mother Smt. Naval kishori (PW-2) and his sister Kumari Girisa were sleeping on their cots in front of their house, Ramparakash (PW-1) was sleeping on the roof of the house and a lilted lantern was hanging as usually on the door of the house, at about 1:00 a.m. when the informant awakened to pee, he saw accused Jatashankar armed with a gun, Mukesh armed with a country made pistol (Katta), Rakesh armed with a 'Tabbal' and Raju, son of maternal aunt of Mukesh armed with a country made pistol (katta) had invaded on the door (sahan) of the house and were near the cot of his father. Accused Jata Shankar and Mukesh fired on his father from their respective weapons. Hearing the noise of gunshot his mother Naval Kishori (PW-2) and sister Kumari Girisa suddenly awakened from sleep and began to shriek for their rescue. On this, accused Mukesh fired upon Smt. Naval kishori also with intention to kill her. Accused Jata Shankar and Mukesh fired on his father from their respective weapons. Hearing the noise of gunshot his mother Naval Kishori (PW-2) and sister Kumari Girisa suddenly awakened from sleep and began to shriek for their rescue. On this, accused Mukesh fired upon Smt. Naval kishori also with intention to kill her. The accused Rakesh inflicted blows of the 'tabbal' on the head of Kumari Girisa, consequently both of them sustained injuries. Hearing the hue and cry, the neighbouring villagers Ram Shankar (deceased, victim in the incident), Jagannath and Pyare rushed up to the spot, flashing torches along with others. Ram Shanker was leading them, accused Mukesh and Raju @ Chandra Prakash fired on him, he turned and ran towards his house but fell down at the door of his house and died there. Feared of their lives the other villagers ran away from the spot. The accused appellants were searching the informant-Ramprakash, climbing upon the roof with the help of a ladder, to kill him and his brother. They were shouting that they would take revenge of burning the daughter by killing the entire family. When they could not found the informant and his brother, they fled away from the spot seeing the villager gathering there. Ram Prakash (PW-1) went to Maurawan Police Station got scribed written report and submit the same to the Police Station on 6:15 a.m. of 22nd June 1985. The case was registered against the accused persons and investigated by Shiv Swaroop Tiwari (PW-8) and after completion of all the formalities charge sheet against accused persons has been submitted by him in the Court. 3. The Trial Judge, when the accused persons were produced before the court, framed charges under Section 302 IPC read with Section 34 IPC against all of them while accused Rakesh and Mukesh were charged under Section 307 IPC and accused Jatashankar and Raju for the charge under Section 307 IPC read with Section 34 IPC. Witnesses of Prosecution Side 4. Prosecution in order to prove its case have produced 9 witnesses in the court namely:- i. Ramprakash (the informant) as PW-1, who is the son of Ram Asrey, the deceased, victim of the incident. ii. Naval Kishori (the wife of the deceased, Ram Asrey and mother of PW-1) as PW-2, she is injured in the incident. iii. Dr. Prosecution in order to prove its case have produced 9 witnesses in the court namely:- i. Ramprakash (the informant) as PW-1, who is the son of Ram Asrey, the deceased, victim of the incident. ii. Naval Kishori (the wife of the deceased, Ram Asrey and mother of PW-1) as PW-2, she is injured in the incident. iii. Dr. R. Prasad (Medical officer of Primary Health Centre Hilauli, who examined Kumari Girisa, daughter of deceased Ram Asrey, the injured in the incident) as PW-3. iv. S.I. Tribhuvan Nath Singh (who prepared the inquest report of the dead bodies of Ram Asray and Ram Shankar pandey) as PW-4. v. Dr R.K Suri (Medical Officer who had done medical examination of Smt. Naval kishori, PW-2 on 23rd June 1985 at 11:35 a.m.) as PW-5. vi. Ameer Singh (the Head Constable who had prepared chick F.I.R., exhibit ka-12 and registered the case in the G.D exhibit ka-13) as PW-6. vii. Dr S.P. Rastogi (District Hospital, Unnao who had conducted the autopsy of dead bodies of Ram Asray and Ram Shankar on 23rd June 1985 at 2:00 p.m. and prepared postmortem report exhibit ka-15 and 16) as PW-7. viii. Shri Shiv Swaroop Tiwari (Station Head Officer incharge, Police Station 'Maurawan' who had done investigation and prepared site plan) as PW-8 and other memo of seizure and recovery from the spot. ix. Constable Ram Ashish Singh (who carried the dead bodies of Ram Asray and Ram Shankar in sealed condition to Merchury for postmortem) as PW-9. Documentary Evidences 5. During trial following documentary evidences were laid before the court and proved by their respective witnesses. ix. Constable Ram Ashish Singh (who carried the dead bodies of Ram Asray and Ram Shankar in sealed condition to Merchury for postmortem) as PW-9. Documentary Evidences 5. During trial following documentary evidences were laid before the court and proved by their respective witnesses. The written report submitted in Police Station Maurawan proved by PW-1 Ramprakash is exhibit Ka-1, the F.I.R. registered thereupon is exhibit ka-12, the postmortem of Ram Shankar is proved by PW-7 as exhibit ka-15, postmortem of Ram Asrey proved by PW-7 as Exhibit Ka-16, injury reports of Kumari Girisa proved by PW-3 is exhibit Ka-2, injuries report of Naval Kishori by PW-5 is exhibit ka 5, seizure memo of blood stained clothes of Kumari Girisa and Smt. Naval Kishori respectively ka-17 and ka-18, the seizure memo of lantern from the spot by investigating officer is exhibit ka-19, site plan is exhibit K-20 prepared and proved by investigating officer, the bed sheet which was on the cot of Ram Asrey (deceased) at the time of incident was seized and memo was prepared by the investigating officer is Exhibit Ka-21, the seizure memo of 6 pellets found on the body of the deceased Ram Asrey and three empty cartridges found beneath his cot were prepared by investigating officer and proved in the court is exhibit ka-22, the collection of blood stained soil and plain soil by investigating officer from beneath the cot of Ram Asray and near the dead body of Ram Shanker Pandey was done and the memo prepared by the investigating officer proved in the court by him is exhibit ka-23 and 24. He found one empty cartridge in the field of Bhagwati, the memo prepared by him is exhibit ka-26, the ladder used by the accused persons was seen and memo thereof was prepared by investigating officer is exhibit ka-27, memo of torches prepared by the investigating officer is exhibit ka-30 and 31, the letters prepared for medical examination and proved by him is exhibit ka-28 and 29. 6. After getting examination of all the prosecution witnesses, the trial judge found the case of prosecution established on the basis of evidence of Ramprakash, PW-1, Smt. Naval Kishori, PW-2 and other prosecution witnesses. 6. After getting examination of all the prosecution witnesses, the trial judge found the case of prosecution established on the basis of evidence of Ramprakash, PW-1, Smt. Naval Kishori, PW-2 and other prosecution witnesses. Para-16 of the impugned judgment of the Trial Judge reads as under:- "It is established from the testimony of Sri Ram Prakash (PW-1) and Smt. Naval Kisori (PW-2) that the accused persons bore malice towards the deceased and the members of his family because the daughter of accused Jatashanker who was married to the son of Ram Asre (deceased) had died due to burn injuries and the accused persons had impression that she was intentionally burnt by the family members of Ram Asrey (deceased). The accused persons, therefore, armed with gun, country made pistols and Tabbal (a sharp edged cutting weapon). It is further proved from the testimony of these witness that accused Mukesh and Jatashanker had fired at Ram Asre who died instantaneously. On the sound of gun shots, Smt. Naval Kishori (PW-2) and Km. Girisha who were sleeping very close to Ram Asre (deceased) were awakened and as soon as they tried to raise alarm, accused Mukesh fired at PW-2 Smt. Naval Kisori and accused Rakesh assaulted Kumari Girisha with Tabbal. Consequently, both of them had suffered injuries. On the shrieks of these persons, the villagers including Ram Shanker (deceased) rushed to the scene of occurrence. Accused Raju and Mukesh fired at them. Consequently Ram Shanker had sustained injuries and died on the spot. Both these witnesses were cross-examined at a very great length by the learned defence counsel. In spite of lengthy and combersome cross-examination, they could not be shattered. Both these witnesses maintained their mental con-posture throughout and gave convincing replies to all the questions put to them. Had they not seen the occurrence and had they been examined after tutoring they must have collapsed under the weight of tiring trying cross-examination. I find both these witnesses most truthful and credible and do not discover any ground to reject their testimony." Arguments advanced by learned counsel for the appellant, Sri Jyotindra Misra, Advocate (learned Senior Designated) assisted by learned counsel Sri Kapil Misra, Advocate. 7. I find both these witnesses most truthful and credible and do not discover any ground to reject their testimony." Arguments advanced by learned counsel for the appellant, Sri Jyotindra Misra, Advocate (learned Senior Designated) assisted by learned counsel Sri Kapil Misra, Advocate. 7. The accused appellants have assailed the impugned judgment of conviction and order of sentence on various grounds inter-alia in the appeal, namely learned trial judge has erred in law and facts in recording conviction and sentencing the appellants because the medical evidences show that prosecution story as narrated in the First Information Report is false. It is argued that prosecution has failed to prove it's case beyond all reasonable doubts as there are so many contradictions and discrepancies in the statements of PW-1 and 2 which make highly doubtful the PW-1 to be an eye witness, as he claims himself watching the incident from the roof of his house in the night of 21/22.6.1985. It is doubtful that he could see the incident in the light of lantern hanging on the door of house when his father deceased Ram Asrey, mother Smt. Naval Kishori and sister Kumari Girisa were sleeping on their cots. The night on the date of incident admittedly was a dark night and it was quite impossible for PW-1 to see any thing in the weak light of the lantern, as such identification of accused person by him was reasonably not possible. 8. Learned counsel further contended, reading over the statement of PW-1, that he stated to bear a torch at the time of incident and saw the accused persons in the flash of torch also, whereas neither in the First Information Report the torch is mentioned nor the torch, by investigating officer, was produced in evidence and proved during the trial. Learned counsel further raised a doubt as to the presence of PW-1 on the roof of the house along with his cot, in absence of any stair leading to the roof or without a ladder. 9. Learned counsel further argued that ocular evidence is in variance with the medical evidence which came out from the medical examination reports of the PW-2, (the injured witnesses) as well that of Kumari Girisa. The opinion of doctors who examined the said two injured person is not supporting the statement of said witnesses and as such their presence on the spot is doubtful. The opinion of doctors who examined the said two injured person is not supporting the statement of said witnesses and as such their presence on the spot is doubtful. Learned counsel further argued that in the darkness of the night it was not possible for the PW-1 to recognize and identify the assailants who committed the crime in the fateful night of 21/22.6.1985. He argued in defence that some dacoits attacked the house of informant and in the course of dacoity Ram Asray and Ram Shankar were gunned down by the unknown assailants to whom the witnesses due to darkness of night could not recognize, informant only under apprehension falsely implicated the accused appellants that they might have attacked in vengeance. As such the entire case of prosecution is cooked, witnesses are uncredible and untrustworthy. The investigation officer had not held identification parade after the arrest of the accused, therefore, the identification of assailants who commit the offence could not be established. 10. Learned counsel to fortify his contention relied on the judgment in Iqbal and Ors. Vs. State of U.P. reported in 2015 6 SCC 623 particularly citing the para-10 and 11 of the judgment which runs as under:- "10. In cases of dacoity, usually, the offence is committed by unknown persons with the criminal background. It is only in very few cases, the accused-dacoits are known to the victim. PW1Patia Singh and PW2-Jay Singh have stated that they had witnessed the incident from a distance of three and half yards. PW3-Begraj also stated that he had witnessed the incident from a distance of five-six yards in the feeble torch light. Admittedly, according to the witnesses, there was no electricity at the time of incident in their houses. They claimed that they could see the accused persons with the help of their torch lights. In the courts below, onbehalf of the accused persons, it was argued that the night of incident was an amavasya-new moon night. A perusal of calendar of that month in that year, it is seen that the intervening night of 21/22.09.1979 was a new moon night i.e. amavasya. 11. In the courts below, onbehalf of the accused persons, it was argued that the night of incident was an amavasya-new moon night. A perusal of calendar of that month in that year, it is seen that the intervening night of 21/22.09.1979 was a new moon night i.e. amavasya. 11. In our considered view, it is unbelievable that on a new moon night when it was pitch dark, the witnesses who were frightened and who were hiding themselves behind the walls in order to save themselves, could have seen actual faces of the accused persons just by flash of torch lights on their faces and in the light of lantern. Further, there were about 14-15 dacoits in number, all armed with deadly weapons and were continuously making ingress and egress in the house of the deceased, it becomes inconceivable as to how the witnesses standing at a distance in a feeble light would have been able to identify the dacoits." 11. Learned counsel for the appellants further relied on the judgment of Hon'ble Supreme Court in Manzoor Vs. State of U.P. and Suleman Vs. State of U.P. reported in 1982 (2) SCC 72 emphasizing the necessity of identification by the Investigating officer when incident happens in a dark night by some unknown assailants hiding their faces, para-12 of the judgment quoted by him reads as under:- "12. There is then the evidence of P.Ws. 1 and 2, the home-guards of whom only P.W. 2 had identified the appellants in the identification parade held on 17.11.1978. The four home-guards including P.Ws. 1 and 2 are stated to have flashed their torch lights and to have seen the two persons running away from the scene of occurrence after they had heard the alarm of the injured Gul Bahar near the railway line. The torches have not been produced in evidence, and the investigating officer P.W. 12 would say in his evidence that he saw those torches 30 and returned them to the home-guards. It is not known why the investigating officer P.W. 12 thought it fit to return the torches with the aid of which the home-guards are stated to have seen the two persons running away from the scene of occurrence though that will be a relevant piece of material evidence in the case. P.W. 12 has stated that after recording the statement (Ex. Ka. P.W. 12 has stated that after recording the statement (Ex. Ka. 11) of the deceased Gul Bahar at the District hospital, Saharanpur he went to the mela and recorded the statements of the four home-guards. This evidence of P.W. 12 shows two things, namely (1) that the home-guards would have been on duty at the mela in the night of 22/23.9.1978 40 and could not have been on patrol duty, moving about near the railway line or the lime kiln which is stated by the P.W. 12 to be situate one furlong away from the mela, as P.Ws. 1 and 2 would have it, and (2) that none of the home-guards could have accompanied the injured Gul Bahar from the petrol pump where the First Information Report (Ex. Ka. 1) is stated to have been recorded to the Police Station, for if any home-guard had accompanied the injured Gul Bahar to the Police Station he would have been examined by the police at the Police Station itself in connection with this case and it would not have been necessary for P.W. 12 to have examined that home-guard only at the mela. The evidence of P.Ws. 1 and 2 that Ex. Ka 1 was recorded at the petrol pump is not reliable, for it is stated in Ex. Ka. 1 that one of the home-guards took down the deceased's statement and brought him to the Police Station after recording the report. From the statement in Ex. Ka. 1 that one of the home guards brought the deceased to the Police Station, it would appear that Ex. Ka. 1 could have been written only after the injured Gul Bahar had been taken to the Police Station and not earlier. It is to be noted that none from the petrol pump and the rickshaw-puller who is stated to have carried the injured Gul Bahar from the petrol pump to the Police Station has been examined as a witness at the trial. It is seen from the evidence of P.W. 12 that the home-guard did not give him the description of any of the culprits when he examined them and that he did not even ask them about it though it is stated in the report Ex. Ka 1 that the home-guards had seen the culprits thoroughly and identified them. It is seen from the evidence of P.W. 12 that the home-guard did not give him the description of any of the culprits when he examined them and that he did not even ask them about it though it is stated in the report Ex. Ka 1 that the home-guards had seen the culprits thoroughly and identified them. If at the earliest opportunity the home-guards did not mention any identifying features of the culprits when they were examined by P.W. 12, it is difficult for us to believe how P.W. 2 could have identified both the appellants nearly two months later on 17.11.1978. It has to be noted that the appellants have stated in the trial court that they were shown to the witnesses before the identification parade was held. In these circumstances we are not impressed with the evidence of P.Ws. 1 and 2." 12. Learned counsel in the context of the case discussed in the above judgment of Hon'ble Supreme Court applied the finding given therein on the facts of the present case, saying that the torches have not been produced in evidence. It is obvious from the statement of the investigating officer in his evidence that he saw those torches and after preparing memo returned them to the villagers who arrived at spot flashing their torches. He further argued that for the reason of non production of torches during examination of investigating officer the story of seeing and identifying the accused persons in the flash of torches made by neighbouring villager of PW-1 is fictitious and unbelievable. 13. On the basis of arguments stated hereinabove and deferring the judgment of Hon'ble Supreme Court, the learned counsel for the appellant assailed the impugned judgment and order of sentence as erroneous in fact and law both, based on conjectures and surmises, suffering from mis-appreciation of evidence, by relying uncredible, untruthful and untrustworthy statement of PW-1 (Ram Prakash, the informant) and the injured witnesses PW-2, Smt. Naval Kishori. Arguments in reply by Ms. Smiti Sahai, learned Additional Government Advocate: 14. In reply to the arguments of learned counsel for the appellant, learned A.G.A., Ms. Smiti Sahai submitted that the first information report by the informant (PW-1) is made quickly and promptly just after the happening of the incident without any unnecessary and unreasonable wastage of time. Therefore, it is a natural narration of incident without any exaggeration. In reply to the arguments of learned counsel for the appellant, learned A.G.A., Ms. Smiti Sahai submitted that the first information report by the informant (PW-1) is made quickly and promptly just after the happening of the incident without any unnecessary and unreasonable wastage of time. Therefore, it is a natural narration of incident without any exaggeration. In counter to the argument advanced by learned counsel for the appellant relating to the non disclosure in the F.I.R. about the torch carried by PW-1 at the time of incident and the ladder/stairs leading to the roof, through which he went on the roof of the house in the night for sleeping, she argues that they are immaterial because first information report could not be an encyclopedia of the entire facts. She submitted that the FIR made by the PW-1 is very much natural and spontaneous to communicate the police officer about the fateful incident happened with his family members on the date and time and place of the incident and also that who have committed the same and why. 15. Learned A.G.A. relied on the judgment of Hon'ble Supreme Court in Jitendra Kumar Vs. State of Haryana with Sunil Kumar and Anr. Vs. State of Haryana reported in (2012) 6 SCC 204 on the point, 'purpose and nature of the First Information Report'. Para 18 of the said judgment reads as under:- "18. The Court has also to consider the fact that the main purpose of the FIR is to satisfy the police officer as to the commission of a cognizable offence for him to conduct further investigation in accordance with law. The primary object is to set the criminal law into motion and it may not be possible to give every minute detail with unmistakable precision in the FIR. The FIR itself is not the proof of a case, but is a piece of evidence which could be used for corroborating the case of the prosecution. The FIR need not be an encyclopedia of all the facts and circumstances on which the prosecution relies. It only has to state the basic case. The attending circumstances of each case would further have considerable bearing on application of such principles to a given situation. Reference in this regard can be made to State of U.P. Vs. Krishna Master and Ors. [ (2010) 12 SCC 324 ] and Ranjit Singh and Ors. Vs. It only has to state the basic case. The attending circumstances of each case would further have considerable bearing on application of such principles to a given situation. Reference in this regard can be made to State of U.P. Vs. Krishna Master and Ors. [ (2010) 12 SCC 324 ] and Ranjit Singh and Ors. Vs. State of Madhya Pradesh [ (2011) 4 SCC 336 ]." 16. Learned A.G.A further argued reading over the testimony of PW-1 and PW-2 that the deceased, Ram Asrey, his wife Smt. Naval Kisori and daughter Ms. Girisa were sleeping on their respective cots in sahan just in front of the door of the house, while the accused appeared on the spot, it is proved by the evidences that a lantern was hanging on the door. It is also proved by the evidences that the PW-1, the son of the deceased (Ram Asrey) namely Ram Prakash was sleeping on the roof of the house, at that moment when he awakened from sleep to pee he saw the accused persons near the cot of his father, armed with fire arms, seeing this he raised alarm, watching the entire incident from the roof of the house. 17. Learned A.G.A laid emphasis on the presence of eye witnesses namely PW-1 and PW-2 at the time of commission of offence by accused appellants, as the PW-2, Naval Kisori (wife of the deceased, Ram Asrey) is an witness, who herself had sustained fire arm injuries during the same incident. She further stressed on evidentiary value of her testimony that the same deserves to be put on a higher pedestal of credibility than that of others and cannot be discarded on trivial inconsistency if any. She further argued that the prosecution witness PW-2's injuries are examined by Medical Officer PW-5, who proved his report in the court. PW-2 since is a rustic villager, therefore, the lapse of time from the date of incident till the date of recording of evidence is of utmost consideration when minor and trivial inconsistencies in her statements, if occurs, without having any material bearing upon the fact in issue. Learned A.G.A in support of her argument relied on the judgment of Hon'ble Supreme Court in Brahma Swaroop and Another Vs. State of U.P. (2011) 6 SCC 288 particularly on para 28 of the judgment which are quoted hereunder:- "28. Learned A.G.A in support of her argument relied on the judgment of Hon'ble Supreme Court in Brahma Swaroop and Another Vs. State of U.P. (2011) 6 SCC 288 particularly on para 28 of the judgment which are quoted hereunder:- "28. Where a witness to the occurrence has himself been injured in the incident, the testimony of such a witness is generally considered to be very reliable, as he is a witness that comes with a built-in guarantee of his presence at the scene of the crime and is unlikely to spare his actual assailant(s) in order to falsely implicate someone. “Convincing evidence is required to discredit an injured witness”. (Vide: State of U.P. v. Kishan Chand & Ors., (2004) 7 SCC 629 ; Krishan & Ors.v. State of Haryana, (2006) 12 SCC 459 ; Dinesh Kumar v. State of Rajasthan, (2008) 8 SCC 270 ; Jarnail Singh & Ors. v. State of Punjab, (2009) 9 SCC 719 ; Vishnu & Ors. v. State of Rajasthan, (2009) 10 SCC 477 ; Anna Reddy Sambasiva Reddy & Ors. v. State 2 of Andhra Pradesh, AIR 2009 SC 2661 ; and Balraje @ Trimbak v. State of Maharashtra, (2010) 6 SCC 673 )." 18. Learned A.G.A further emphasized on the reliability, trustworthiness and truthfulness of the witnesses namely PW-1 and PW-2 as their statements are fully corroborated with the medical evidences and testimony of investigating officer (PW-8). She argued that on facts, it could not be said that the witnesses are planted witnesses. They are natural witnesses and incident narrated by them is untutored, unrehearsed and corroborated by other materials proved by evidences on record. 19. Learned A.G.A lastly argued on the explanation submitted by accused appellant as their defence against the evidences proving the case of prosecution that on the date of incident some unknown assailants committed dacoity in the house of informant, who could not be identified, therefore, due to the reason of enmity, informant falsely implicated the accused-appellants, she submitted, the alleged dacoity committed in the house of the informant on the date and time of the incident was not asked from the investigating officer (PW-8) during his examination in trial nor it was proved as a defence to create doubt on the prosecution case. 20. 20. We anxiously heard and considered the respective arguments raised by learned counsel for the appellant and learned A.G.A. Since the judgment before us, is of conviction and sentence, impugned in the present appeal, therefore, the entire evidence led by the prosecution, oral and documentary must be re-appreciated carefully. Before re-appreciation of the evidence available on record of the trial, we formulate following two questions for determination in appeal. (1) Whether the prosecution has successfully proved it's case by prosecution witnesses beyond all reasonable doubts. and (2) Whether the accused appellants by setting their defence against the proved case of prosecution, has been successful in showing the same on the preponderance of probabilities, so as to cast upon the prosecution case a reasonable doubt? 21. It is the cardinal rule of our criminal jurisdiction that the burden in the web of proof of an offence would always lie upon the prosecution, to prove, all the facts constituting the ingredients, beyond reasonable doubt. If there is any reasonable doubt the accused is entitled to the benefit of reasonable doubt. 22. In the present appeal the testimony of eye witnesses PW-1 (Ram Prakash) and injured eye witness PW-2 (Naval Kisori) are of utmost importance. While appreciating the evidence of any witness claiming to have seen the incident, the court is to consider and look for the following factors appearing in the entire testimony of the witnesses. (i) presence of the witness on the spot. (ii) witnesses having seen the incident. (iii) credibility of the witnesses. 23. Prosecution to prove its case produced two witnesses of fact namely Ram Prakash (the informant) as PW-1, who watched the entire episode that happened in unfateful night of 21/22.6.1985, and his mother Naval Kisori the wife of Ram Asrey (deceased victim of the incident) as PW-2, who is an injured witness. They narrated the story of the incident in their examination in chief. The defence in cross-examination tested their veracity by putting questions to shaken their credibility and trustworthiness. They have also stated the motive of the appellant for commission of the offence in question. Since in the First Information Report the motive is stated, therefore the evidence of prosecution witnesses is to be seen in the context of motive also if found proved. Motive 24. They have also stated the motive of the appellant for commission of the offence in question. Since in the First Information Report the motive is stated, therefore the evidence of prosecution witnesses is to be seen in the context of motive also if found proved. Motive 24. The motive for committing an offence in all cases has not of much importance, particularly where the prosecution case is totally based on direct evidences proof of motive becomes of less significance. In the present case the prosecution has set a motive and got it proved by the testimony of PW-1. PW-1 as eye witnesses of the incident. They have stated the motive of the accused-appellants categorically and specifically in the FIR also. The motive as set in the FIR is reiterated by PW-1 without any variation in the examination-in-chief during trial. The statement of PW-1 began on 11.12.1985, after the date of occurrence 21/22.6.1985 that is to say after an interval of about seven months. At that time witness was about 18 to 20 years, his cross-examination was done on 1.2.1986. Since, then about three months more have been elapsed, then also the teenager witness PW-1 and his mother PW-2 firmly stated the motive in cross-examination by defence counsel. PW-1 stated, "after the death of my sister-in-law from burn injuries the accused began to move applications against his family members to the effect that they have burnt her to death (the statement is extracted and highlighted from the testimony of PW-1 Page-2 Para-6 dated 1.2.1986). The injured witness PW-2, wife of the deceased, Ram Asrey namely Naval Kisori in her examination-in-chief has stated in very clear words that the accused-appellants were shouting that they would be taking revenge of their daughter's death from the entire family and were searching her children. This statement in chief of PW-2 remains constant as she has not been cross-examined on this point by learned counsel for the defence. As such since the very inception right from the lodging of F.I.R. the motive imputed upon the accused-appellants for the commission of offence is stated by PW-1 and PW-2 in their deposition before the Court. As such the motive behind commission of offence imputed upon the accused-appellants stands proved by the substantive evidence. As such since the very inception right from the lodging of F.I.R. the motive imputed upon the accused-appellants for the commission of offence is stated by PW-1 and PW-2 in their deposition before the Court. As such the motive behind commission of offence imputed upon the accused-appellants stands proved by the substantive evidence. The argument of learned counsel for the accused-appellants that if the accused-appellants came under any impression in 1983 when the death of Smt. Meena Kumari, occurred by reason of burn in her in-laws' house, could not be imagined, reasonably to survive till the date of incident 21/22.6.1985, after a considerable lapse of time of more than one and a half years. The arguments of learned counsel is not tenable in the light of the explanation submitted by accused appellant Jatashanker, when he was confronted with this substantive piece of evidence under Section 313 of the Cr.P.C. He replied, 'it would be wrong to say that he had enmity. He further added 'she was burnt by in-laws'. He admitted in last question under Section 313 Cr.P.C. put before him while replying the same that he had moved complaint with regard to the death of his daughter from burning caused by her-in-laws, due to this they (informant's family) had enmity. As such in view of the substantive piece of evidence with regard to motive led by the prosecution and as expressed by the accused-appellant Jatashanker, he was under impression even on the date of submitting explanation under Section 313 Cr.P.C. that his daughter was burnt to death by her-in-laws, is found proved as a strong motive for the commission of offence. 25. The incident of burning resulting into death of Smt. Meena Kumari within one year from marriage is admitted to both the parties. It is also admitted that accused-appellant, Jatashanker moved several complaints for action against in-laws of Meena Kumari, but the same remained of no avail. In such circumstances a frustrated father, quite naturally, as it is proved, to have hatched enmity and vengeance with the in-laws' family to take revenge of his daughter's death. Admittedly he was under impression that his daughter was burnt to death by her in-laws, as comes out from his explanation given by him under Section 313 of the Cr.P.C. Presence of the witnesses on spot and their credibility. 26. Admittedly he was under impression that his daughter was burnt to death by her in-laws, as comes out from his explanation given by him under Section 313 of the Cr.P.C. Presence of the witnesses on spot and their credibility. 26. The argument advanced on behalf of the accused-appellant doubting the presence of witnesses on spot is founded on the following contentions- (i) There was a dark night on the date of incident i.e., 21/22.6.1985 at about 1:00 a.m. (ii) There was no sufficient source of light wherein the incident could be watched by PW-1, Ram Prakash allegedly from the roof of the house. (iii) The presence of torches with the neighbouring villagers is mere a story as no independent witness was examined. (iv) The presence of lantern allegedly hanged on the door is not proved by reason of inconsistent statements of PW-1, PW-2 and PW-8. (v) Prosecution failed to establish identity of accused after their arrest by holding a test identification parade. 27. If prosecution witnesses consistently have accounted for the material facts of incident without any repugnance or serious anomaly in their own statement or in their statements inter-se, except minor variation having no material alteration in the nature and genesis of the incident, they shall be treated as credible and reliable witness. 28. The incident as reported by the informant to the police is prompt one after commission of offence at 1:00 a.m. in the night of 21/22.6.1985, was registered in the Police Station-Maurawan at 6:15 a.m. The second fact, important for consideration, is that the accused-appellant who were reported as assailants are relatives and not the persons unknown to the informant. Thirdly, it is also to be kept in mind that the informant, Ram Prakash (PW-1) was an 18 years old boy, normally residing in the house along with parents reasonably will be supposed to remain in the house in night. He has proved by his testimony before the court that he was sleeping on the roof. His presence in the house at the time of incident is established by evidence, through his uncontroverted and uncontradicted testimony before the Court. He has proved by his testimony before the court that he was sleeping on the roof. His presence in the house at the time of incident is established by evidence, through his uncontroverted and uncontradicted testimony before the Court. PW-1 has proved that when he awakened under compulsion of the call of nature to pee at 1:00 a.m. he saw the accused-appellants, Jatashanker his sons Mukesh and Rakesh and their cousin brother (son of maternal aunt of Mukesh) Raju near the cot of his father armed with their respective weapons. He has also deposed before the court that all were known to the informant, therefore, they could easily be identified by him from their shape and size of the body postures, gestures and even the manner of movements, etc. irrespective of the fact that the incident happened in night. 29. Another eye witness PW-2, one of the victim of the incident as injured from the firing of the accused-appellant, Mukesh is examined on 1.2.1986, she is a rustic villager, also a lady witness who lost in the incident her husband. She has also identified the accused appellants, as they were very near to her, in the course of commission of offence, therefore, her statement accounting for the incident is believable for the reason of her presence on the spot and having been injured in the incident. The cause of injury sustained by her in the course of incident is stated by PW-1 and PW-2 also. PW-1, Ram Prakash states even in the F.I.R. that "while on the noise of fire my mother and sister awakened and began to cry, Mukesh fired upon mother with intention to kill her and accused-appellant Rakesh inflicted the blow of "tabbal" on the head of Kumari Girisa, sister of the informant. In his statement before the Court, PW-1-Ram Prakash stated on oath in examination-in-chief the same fact as reported by him in the F.I.R. by saying that "when accused Mukesh and Jatashanker fired on his father (Ram Asrey, the deceased victim), hearing the noise of fire his mother and sister awakened, they were crying and screaming. The accused-appellant, Mukesh fired on the mother, while Rakesh inflicted the blow of 'tabbal' on head of his sister Kumari Girisa. The accused-appellant, Mukesh fired on the mother, while Rakesh inflicted the blow of 'tabbal' on head of his sister Kumari Girisa. In cross-examination, he stated in para-8 of the statement that in the sahan before his house, there was no boundary and that was an open space, the accused were standing at the distance of 4 to 5 hands from the cot of father. When the accused-appellant fired upon his father the mother and sister of the informant tried to flee away from the spot but accused intercepted them, Rakesh caught hold the sister, Kumari Girisa and Mukesh caught hold the mother, Naval Kisori. Mukesh began to beat them and fired only one shot on mother and no fire was made upon sister, Kumari Girisa. From the testimony of witnesses PW-1 and PW-2 it comes out - (a) the witnesses PW-1 and PW-2 being the family members naturally in the night, when the incident happened, were in their house sleeping in open Sahan in front of door of the house due to hot night in summer on their respective places told in the statement. (b) The cot of PW-2, Naval Kisori was in the eastern side of cot of Ram Asrey whereas Kumari Girisa was sleeping on cot lying on western side. As such they were very near to the cot of deceased Ram Asrey when the accused fired on Ram Asrey. (c) PW-2, Naval Kisori is injured in the same incident by reason of fire from country made pistol made by accused-appellant-Mukesh upon her just after Jatashanker fired on Ram Asrey when he was sleeping. (d) PW-1, Ram Prakash was sleeping on the roof of the house and when awakened, he saw from the roof, the accused appellants near the cot of his father and he remained there throughout watching the entire incident. He saw accused-appellant armed with gun and Mukesh armed with a country made pistol. They fired upon his sleeping father from their respective weapons. He found his father died when he came down from the roof after the accused fled away. He also deposed in the court about Mukesh and Raju who fired on Ram Shanker Pandey (deceased) who hearing the noise of fire and hue and cry of PW-2 and her daughter, he rushed up to the scene of crime along with other neighbouring villagers. He also deposed in the court about Mukesh and Raju who fired on Ram Shanker Pandey (deceased) who hearing the noise of fire and hue and cry of PW-2 and her daughter, he rushed up to the scene of crime along with other neighbouring villagers. Ram Shanker Pandey died of the fire arm injury made by Mukesh and Raju. All the above proved fact established the presence of witnesses PW-1 and PW-2 on spot. 30. In similar set of facts before Hon'ble The Supreme Court in the case of Machchi Sigh Vs. State of Punjab & Ors. reported in ( 1983 3 SCC 470 ) evidences showed and established the natural presence of the witnesses in the house. Para 25 and 30 thus reads as under:- "25. The presence of Smt. Sabhan at her own house at night time is but natural. Her husband and her grand-son have been killed. She is the lone survivor of the household. Her evidence therefore assumes great importance. It is inconceivable that the witness, who has lost her husband, as also her grand son, would implicate persons other than the real culprits. The only argument pressed into service was the stock argument regarding insufficiency of light. It was negatived by the courts below. We have already dealt with and negatived this argument for reasons indicated earlier. Her evidence furthermore shows that appellant Kashmir Singh had flashed his torch at her husband (Wanjar Singh) and at her grand-son (Satnam Singh). That she herself remained alive to tell the tale was a stroke of luck. The appellants had shot at her but the rifle shot hit the bullock instead of hitting her. The culprits were naturally, in a hurry to get away. They would not have waited to ascertain whether she was hit. Her evidence remains unshaken. The Courts below have, therefore, rightly considered it to be creditworthy and safe for being acted upon. 30. The order of conviction (passed by the Sessions Court and affirmed by the High Court) is inter-alia based on the dying declaration of Mukhtiar Singh. He was fired at and injured soon after midnight in the early morning of August. 13. He was removed to hospital on that very day. His police statement (which has been subsequently treated as a dying declaration) was recorded on the 16th i.e. three days after the assault. He died on the 18th, two days later. He was fired at and injured soon after midnight in the early morning of August. 13. He was removed to hospital on that very day. His police statement (which has been subsequently treated as a dying declaration) was recorded on the 16th i.e. three days after the assault. He died on the 18th, two days later. The evidence shows that he was in fit condition to make a statement and his statement was truly and faithfully recorded. His statement has been considered to be genuine and true by the Sessions Court and the High Court. We are of the same opinion. It is true that the dying declaration has not been recorded by a magistrate. But then the evidence shows that Mukhtiar Singh was making good recovery and having regard to the condition of his health, no danger to his life was apprehended, it was in this situation that a magistrate was not summoned. Thus, no fault can be legitimately found on this score. Besides, the only question of importance now is as regards the creditworthiness of the statement which has been recorded. Since this statement has been found to be genuine and true nothing can detract from its value. The evidence provided by the dying declaration is by itself good enough to support the order of conviction. But this is not all. Also available is the evidence of PW 37 Ujagar Singh and his daughter-in-law, Munibai (PW 38). The evidence of these two witnesses lends full corroboration to the dying declaration of the victim, and has been rightly relied upon by the Sessions Court and the High Court. We have no reason to view the evidence askance. The presence of these two witnesses in the household was natural. Their evidence shows that on hearing the report of gun they had concealed themselves behind a herd of cattle andhad witnessed the incident from there. We have no reason to disagree with the view of the Sessions Court and the High Court that their evidence is reliable. There is no substance in the argument that the culprits could not have been identified as the light shed by the lantern was not adequate to enable identification. We have already spelled out our reasons for repelling this contention. The finding of guilt is thus fully supported by evidence. We accordingly confirm the same unhesitatingly. There is no substance in the argument that the culprits could not have been identified as the light shed by the lantern was not adequate to enable identification. We have already spelled out our reasons for repelling this contention. The finding of guilt is thus fully supported by evidence. We accordingly confirm the same unhesitatingly. Two of the five appellants (viz : Machhi Singh and Jagir Singh) have been sentenced to death. We will deal with the question of sentence in so far as they are concerned after a shortwhile. In regard to the remaining three, viz : Phuman Singh, Jagtar Singh and Kashmir Singh son of Wadhawa Singh, the sentence imposed by the courts below for the offence under Section 302 read with 149 of IPC; and other offences, must be confirmed. Their appeals will stand dismissed." Source of light on the spot and argument as to the inconsistent testimonies 31. It is highlighted by learned counsel for the accused appellant that there was no source of light and the prosecution has failed to prove the existence of lantern lilted on the spot of incident. PW-1 has stated the place of lantern, hanging on the door of the house in front of which three peoples namely Ram Asrey (the deceased victim), his wife Naval Kisori, PW-2 and Kumari Girisa their daughter were sleeping on their respective cots. PW-1 in his statement has stated that lantern was hanging out on the door on a "Chabutra" of 3-4 feet height and covered with a "Chappar" in northern side of the door on a peg, whereas PW-2, Naval Kisori stated in her statement the place of lantern out of the door in its southern side in "Kutiya". The PW-8 (Investigating Officer) had shown the lantern hanging at a place shown in the site map as "L", we perused the site map and found that there are two houses of deceased, Ram Asrey one situated in northern side another in southern side, in between these two houses the place adjacent to the southern house is shown where the cots were lying on which deceased, Ram Asrey along with his daughter and wife was sleeping. In oral examination before the court also it is stated by the witnesses PW-1, PW-2 and the PW-8 has also shown outside the door, the three cots, in the middle as letter "A" cot of Ram Asrey is shown and in the east the cot of Naval Kisori is shown as letter "B". The cot of Kumari Girisa is shown in the west as letter "C". The place shown as letter "L" is the place where the lantern was hanging is just in the right side of main door of the southern house that is to say in the east of the open space (Sahan). 32. The statement of PW-1, that lantern was hanging outside the house in northern side and the statement of PW-2 that lantern was hanging on her south direction outside the door proved the position of open space (Sahan) correct, both the witnesses are indicating the same place as shown by the Investigating Officer in his site map. Since they were at different places while watching the incident, their narration of the incident is as they saw from their respective directions. 33. The PW-1 was watching the incident from the roof of his house which is situated in the map in the southern side while the place of incident is in the north of the said house therefore, he told the place of lantern at northern side of the door whereas the cot of PW-2, Naval Kisori was lying on the north south direction and while she awakened with the noise of fire, lantern was on her south direction hanging on the wall of the southern house shown as "L" by the Investigating Officer. Therefore, here seems no inconsistency in the narration of PW-1, 2 and 8 respectively Ram Prakash, Naval Kisori and Investigating Officer with regard to the place of lantern where it was hanging. 34. Learned counsel for the appellant argued about the contradiction that PW-1 in F.I.R. has not stated about a torch in his hand while he was seeing the incident in question in night, in the examination-in-chief PW-1 for the first time stated in his statement before the court that a torch was in his hand while he watched the incident from roof. Secondly, the torches shown in the hands of neighbouring villagers who rushed upto the place of incident hearing the hue and cry of the informant's family members, were also not produced in the court, though the Investigating officer in his statement before the court stated on oath that he saw the torches, prepared memo thereof and returned the same to the witnesses. The torches were not produced during the trial. In the absence of production of torches during the trial the Investigating Officer proved only the seizure memo whereupon Exhibit-30 and 31 were marked before the trial judge. 35. In his examination, the PW-8, the Investigating Officer has not given any justification why the torches were returned to the witnesses and not produced in the court. In the absence of production of torches, the statement of the PW-1 Ram Prakash about carrying in hand a torch while watching the incident from his roof and as reported in the FIR in the hands of neighbouring villagers who rushed towards the place of incident flashing torches might be an improvement on the part of investigating officer, as every Investigating Officer tries to strengthen the case of prosecution. But in view of the circumstances of the present case non production of torches by the Investigating Officer at the time of his examination in the court would not have any effect of corroding the prosecution case as the assailants were known to the witnesses and they were seen from the very near by the witnesses. Secondly, the existence of light emitting from the lantern is also proved, therefore, identity of accused when established, the non production of torches is of no effect. Test identification parade whether necessary in the facts of the case. 36. When the presence of the witnesses PW-1 and PW-2 on spot is proved and established by evidences the incident and the role of the accused appellants in commission of the crime cannot be discarded in view of the fact that all the accused persons were known to the witnesses PW-1 and PW-2 as they were relatives to them. 36. When the presence of the witnesses PW-1 and PW-2 on spot is proved and established by evidences the incident and the role of the accused appellants in commission of the crime cannot be discarded in view of the fact that all the accused persons were known to the witnesses PW-1 and PW-2 as they were relatives to them. It is not impossible to see even in the night for an 18 year old boy who is not reported with any ailment of eyes, to see from his roof the entire incident and also not impossible for the PW-2 the wife of deceased, Ram Asrey who herself was on the scene of crime very near to the deceased, Ram Asrey and the assailants to see and identify them. In the aforesaid circumstances, the question of test identification parade, if not made by the investigating officer the same would have no adverse effect on the testimony of PW-1 and 2. Moreover, the test identification parade is not a substantive piece of evidence. Necessity of test identification parade arises only in cases where the miscreants/assailants are unknown, the crime is committed in the night, the assailants are numerous, they have hide themselves with muffled faces during the commission of crime and the witnesses too are under shock and fear to hide themselves in safe places. In such circumstances, the test identification parade is needed after arrest of suspected miscreants otherwise in the circumstances of present case the test identification parade is unnecessary. The case laws relied on by learned counsel for the accused-appellants have no application in the scenario of facts in the present appeal. 37. Hon'ble Supreme Court in State of U.P. Vs. Babu & Ors. reported Manu/SC/1149/2003 in para 7 has held as under:- "7. Apart from the mention about the torchlight, one important aspect which cannot be lost sight of and which is of relevance and great significance is that the accsed persons are known to the witnesses. When the persons are known, identification is possible from the manner of speech, manner of walking and gesticulating and special features of a person like the physical attributes. The reason indicated to discard PWs 1 and 3 is to the effect that PWs 2 and 9, though they were closely related to the deceased, did not support the prosecution version. When the persons are known, identification is possible from the manner of speech, manner of walking and gesticulating and special features of a person like the physical attributes. The reason indicated to discard PWs 1 and 3 is to the effect that PWs 2 and 9, though they were closely related to the deceased, did not support the prosecution version. That cannot per se be a ground to discard the evidence of other witnesses, one of whom was also a relative, and the other an independent witness. As noted above, the High Court has not discussed the evidence of PWs 1 and 3 to point out any vulnerability. The conclusion arrived at is without reason. Since the High Court has acted on surmises and conjectures, the judgment is indefensible." 38. In similar set of facts before Hon'ble The Supreme Court in Machchi Singh Vs. State of Punjab reported in (1983) 3 SCC 470 in para 5 has held as under:- "5. The most serious criticism pressed into service by learned Counsel for the appellants in each of the appeals is common. Instead of dealing with the identical criticism, in the identical manner, repeatedly, in the context of each matter, we propose to deal with it at this juncture. The criticism is this. It was a dark night. Electricity had not yet reached the concerned village at the material time. In each crime the appreciation of evidence regarding identification has to be made in the context of the fact-situation that a lighted lantern was hanging in the court-yard where the victims were sleeping on the cots. The light shed by the lantern cannot be considered to be sufficient enough (such is the argument) to enable the eye witnesses to identify the culprits. This argument has been rightly rebuffed by the Sessions Court and the High Court, on the ground that villagers living in villages where electricity has not reached as yet, get accustomed to seeing things in the light shed by the lantern. Their eyesight gets conditioned and becomes accustomed to the situation. Their powers of seeing are therefore not diminished by the circumstance that the incident is witnessed in the light shed by the lantern and not electric light. Moreover, identification did not pose any serious problem as the accused were known to the witnesses. In fact they were embroiled in a long standing family feud. Their powers of seeing are therefore not diminished by the circumstance that the incident is witnessed in the light shed by the lantern and not electric light. Moreover, identification did not pose any serious problem as the accused were known to the witnesses. In fact they were embroiled in a long standing family feud. As the culprits had not covered their faces to conceal their identity, it was not difficult to identify them from their facial features, build gait etc. Light shed by the lantern was enough to enable the witnesses to identify the culprits under the circumstances." The witnesses being relative whether interested. 39. To shatter the credibility of prosecution witnesses PW-1 and 2, learned counsel for the appellant argued that they are related witnesses and there is no independent witnesses whereas the name of neighbouring villagers who rushed to the spot hearing hue and cry of Ram Prakash (PW-1), Naval Kisori (PW2) and Kumari Girisa as well the noise of fires, namely Jagannath S/o Kedar Nath Pandey and Pyare S/o Ramdas Pasi along with the other neighbouring people of the village armed with lathi flashing torches reached on the spot. Ram Shanker Pandey was leading them. It is proved by the evidences of PW-1 and PW-2 that the accused-appellant Mukesh and Raju fired on Ram Shanker Pandey, he sustained gun shot injury, turned back to his house and died on instantly. Seeing this the rest of the villagers fled away under the fear of their lives from the spot. The gruesome manner of crime and cruelty on the part of the accused-appellants as seen by the villagers was sufficient to keep them away not only from the assailants but the victims also. Under such circumstance only the near relatives like the wife of deceased victim Ram Asrey and his son if left alone to depose in the court against the accused-appellants during their trial then this is not a matter of surprise. The witnesses either may be relative or independent must have to pass the test of credibility, truthfulness and reliability. No doubt the relative witnesses cannot be said disinterested but it is also true that a witness loosing her husband like PW-2 and father like PW-3 in place of the real culprit will not falsely implicate someone else and save the real culprit who killed the nearest and dearest of such witnesses before their eyes. No doubt the relative witnesses cannot be said disinterested but it is also true that a witness loosing her husband like PW-2 and father like PW-3 in place of the real culprit will not falsely implicate someone else and save the real culprit who killed the nearest and dearest of such witnesses before their eyes. Here again the motive under Section 8 of the Evidence Act has to play an important role and relevance with regard to the substantive piece of evidence proving the incident in question with all certainty and the identification of the accused and their role. Corroboration from medical evidence. 40. The injuries sustained on the body of PW-2, Naval Kishori was examined by the Medical Officer District Hospital, Unnao on 23.6.1985. Dr. R.K. Suri, the Medical Officer who is examined in the trial has PW-5 has proved the injury report of PW-2, Naval Kisori as follows:- "1. Multiple fire arm wound of entry in an area of 17 c.m.x15 c.m. present over upper part of right scapular including right shoulder each measuring .25 c.m.x.25 c.m. hard substance palpable at some places underneath the wound. No blackening and charring present margins inverted. Injury kept under observation. 2. Multiple fire arm wound of entry in an area of 8 c.m.x4 c.m. present over right side of the neck behind the right ear. Each measuring .25 c.m.x.25 c.m. Hard substance palpable under neath the wound margins inverted. Injury kept under observation. 3. Lacerated wound 3.5 c.m.x.5 c.m. present over anterior aspect of right leg middle part. wound is infected. 4. Lacerated wound 1.5 c.m.x1c.m. over the anterior aspect of the left leg .6 c.m. below the left knee joint. Injury no.1 and 2 were caused by some fire arm and 3 and 4 were caused by some blunt object. Injury no.1 and 2 were kept under observation and advised X-ray for pellets, while injury No.3 and 4 are simple ." The injury report has proved by PW-5 in his writing and under signature. He opined that injury no.1 and 2 are fire arm injuries which might have occasion in between night of 21/22.6.1985 at about 1:00 a.m. He also opined that if the depth of wounds would become a slight more, result might have been fatal. In cross examination also he confirmed the injuries no.1 and 2 caused from the fire arm like country made pistol. In cross examination also he confirmed the injuries no.1 and 2 caused from the fire arm like country made pistol. Likewise the injuries sustained by Kumari Girisha caused to her from the blow of "tabbal" inflicted on her head by accused-Rakesh, as stated in evidences before the court by PW-1 and 2, was also examined by Dr. R. Prasad (PW-3) on 22.6.1985. The medical officer M.O.I/C P.H.C., Hilauli which reads as under as Exhibit ka-2:- "Examination of Injuries:-1/= A 4 Cms x 1/2 cm x scalp deep wound present on the right side of head posterior-Anterior/Anterio posterior in direction, 10 cm above the right ear fragus Margins irregular clots of blood present (lacerated wound) Nature:- Simple Duration about 18 hours (Eighteen hours) day old. Caused by Head blunt object R." PW-3 has opined in his report that injuries suffered by Kumari Girisha were approximately 18 days old and caused by some blunt object. This injury report is proved in the court by Dr. R. Prasad as PW-3. He proved the report to have been prepared in his handwriting and signature. He explained that the injuries might have been caused from the reverse end of the "tabbal" because such injuries are in nature seems to have been caused by some blunt object. It would be relevant to extract from the statement of PW-1. Ramprakash, deposed before the court in it's concluding part that a "tabbal" is a tool like Axe (Kulhari). From the statement of Dr. R. Prasad, PW-3 it becomes clear that one side of the tool like "tabbal" is sharp edged whereas it's reverse side has blunt end like Kulhari. Corroboration from the facts and materials in evidence proved by Investing Officer, PW-8 41. Another witness from whose evidence before the court the fact of presence of witnesses PW-1 and PW-2 on spot found corroboration is the investigating officer namely Shiv Swaroop Tiwari, who is examined as PW-8. P.W.-8 collected the blood stained soil from beneath the cot of deceased, Ram Asray and near the body of the deceased Ram Shankar Pandey prepared memo thereof and proved in the court as Exhibit-Ka-24 and 25. Likewise this witness seized the blood stained bed sheet from the cot of Ram Asrey whereupon he was killed by accused-appellant causing fire arm injury, prepared memo and proved in the court as Exhibit-21. Likewise this witness seized the blood stained bed sheet from the cot of Ram Asrey whereupon he was killed by accused-appellant causing fire arm injury, prepared memo and proved in the court as Exhibit-21. He further recovered empty cartridges from beneath the cot of deceased, Ram Asrey, prepared memo and proved in the court as Exhibit Ka-22. The Investigating Officer, PW-8 further seized the blood stained cloth of Kumari Girisa and PW-2, Smt. Naval Kisori prepared memo and proved in the court as Exhibit-18 and 17 respectively. The investigating officer registering the F.I.R. on the basis of written report submitted by the PW-1, Ramprakash proceeded on spot and found the dead bodies of Ram Asrey and Ram Shankar Pandey on spot. Post Mortem Report 42. The post-mortem of the body of Ram Shankar Pandey was done at 2:00 p.m. on 23.6.1985 by Dr S.P. Rastogi. It would be important here to mention that house of Ram Asrey as shown in the map by PW-8 is neighbouring to the house of deceased Ram Shanker Pandey. The external examination and antemortem injuries is given herein extracting from the post mortem report which is proved in the court by Dr. S.P. Rastogi as Exhibit ka-15. Likewise he did autopsy on the dead body of Ram Asrey on the same date at about 2:30 p.m. memo prepared by him and proved in the court as Exhibit Ka-16. He found the fire arm injuries on the body of Ram Shankar Pandey and Ram Asrey were fatal injuries which caused the death. Antemortem injuries and opinion of Dr. S.P. Rastogi mentioned in Post Mortem Report of Ram Shanker Pandey and Ram Asrey are as follows- Ante Mortem Injuries of Ram Shanker Pandey Fire arm entrance wound multiple in number present on right side upper part abdomen in an area 9 c.m. x 13 c.m. present 7 c.m. below right nipple and 12 c.m. above the umblicus, 5 c.m. right to midline. Each wound is 0.3 cm x 0.3 cm. size inverted margin, oval in shape, some are muscles deep and some are abdominal cavity deep, Blackening and tatooing present around the wound, on probing direction of wound is from right, obliquely upward medially backward. On opening the chest cavity, right side of chest cavity following of 200 ml of fluid and clotted blood. size inverted margin, oval in shape, some are muscles deep and some are abdominal cavity deep, Blackening and tatooing present around the wound, on probing direction of wound is from right, obliquely upward medially backward. On opening the chest cavity, right side of chest cavity following of 200 ml of fluid and clotted blood. Right lung lacerated four chots recovered from the right lung substance and 10 small shots recovered from the right lobe of liver. Right lobe liver lacerated Pentoneal cavity full of 500 ml. fluid and clotted blood and two pieces of wading recovered from the liver substance Eight small shots recovered from the skin and muscle substance. Opinion as to cause and manner of death. Died due to shock and haemorrhage as a result. Ante Mortem Injuries of Ram Asray 1. Abraded contusion 2 cmx 2 cm present below the right lower eye lid 1 cm midial to the lateral angle of right eye. 2. Contusion 2 cmx 2 cm left side cheek 2 cm left to the lateral angle of mouth. 3. Abraided contusion 2 cm x 2 cm present on left side fore arm 2 cm poximal to left wrist joint. 4. Lacerated wound 17 cm x 7 cm x bone deep, obliquely in nature present right upper arm front aspect, 10 cm below the right shoulder joint, running obliquely reaching upto right elbow joint. Muscle lacerated badly, bone fractured, 10 small shot recovered from the muscle of the right upper arm. No blackening and tattooiing present inverted margins irregular margins. 5. Fire arm entrance wound 4 cm x 4 cm present on left side scapula, 6 cm below from the spin of scapula, 5 cm above the lower angle of scapula 8 cm from the left axilla. No blackening and tatooing present. Oval in shape inverted margins chest cavity deep, on proving obliquely medically from back to front. On opening the chest cavity. Left side chest cavity full of fluid and clotted blood 300 ml. Left lung lacerated middle part. 13 small shots recovered from the left lung substance. Opinion as to cause and manner of death Died due to shock and haemorrhage as a result of fire arm antemortem injuries. 43. The medical evidence is not in variation with the statement given in the court by the eye witnesses PW-1 Ramprakash and injured eye witness PW-2, Naval Kishori. 13 small shots recovered from the left lung substance. Opinion as to cause and manner of death Died due to shock and haemorrhage as a result of fire arm antemortem injuries. 43. The medical evidence is not in variation with the statement given in the court by the eye witnesses PW-1 Ramprakash and injured eye witness PW-2, Naval Kishori. The statement of both the above two witnesses find further corroboration from the materials collected from the spot by PW-8 are proved in the court. The recovery of dead bodies of the victims of the incident namely Ram Asrey and Ram Shanker Pandey from the spot and post-mortem report amply prove the fatal injuries caused by fire arm convince and give confidence to believe the presence of PW-1 and 2 on spot during the incident therefore, their statements that they have seen the incident could not be disbelieved. They are trustworthy for the simple reason that the role assigned by both the prosecution witness namely PW-1 and PW-2 to the accused-appellant and the manner in which they committed ofence from their respective weapons resulting into the death of Ram Shankar Pandey and Ram Asrey is not suffering from any embellishment, falsity and exaggeration. Moreover the PW-2 is an injured witness, therefore, her testimony stands on a higher pedestal of credence. Deposition of an injured witness should be relied upon unless there are strong grounds for rejection of his/her evidence on the basis of any major contradiction or discrepancy because his/her presence on the scene stands established. Since the testimony of aforesaid two witnesses are not suffering from any contradictions, inconsistencies therefore, we hold the aforesaid witnesses worthy of credence and wholly reliable. 44. The questions asked in cross-examination from PW-1 and PW-2 about the direction from the deceased of accused assailants while they fired upon Ram Asrey and on Ram Shanker Pandey. The distance between the deceased and assailants were also asked from both the witnesses as learned counsel for the defence tried to carve out some discrepancies from answers given by the aforesaid witnesses with regard to the symptoms and shape of wounds caused by fire shot on the body of deceased. But no such discrepancies could be elicited from answers which may shatter the case of prosecution regarding killing of Ram Asrey and Ram Shanker Pandey caused by fire arm injury. But no such discrepancies could be elicited from answers which may shatter the case of prosecution regarding killing of Ram Asrey and Ram Shanker Pandey caused by fire arm injury. PW-1, Ramprakash in page-14 of his cross-examination has stated that accused persons had fired from a distance of 4 to 5 hands (approximately 8 feet), therefore, there is no blackening and tatooing around wound. As such the statement with regard to the fire arm injury on the body of Ram Asrey (deceased) is not in variation with the post mortem report. It is also important to note that in firing upon Ram Asrey heavy projectile like gun was applied by accused Jatashanker whereas Mukesh his son applied country made pistol for firing on the deceased. The blackening depends on the quality of gun powder also. As regards blackening around the injuries on Ram Shanker Pandey (deceased), PW-1 stated that accused Mukesh and Rakesh fired on him with their respective weapons, the country made pistol, when he was rushing up to the scene of crime leading the neighbouring villagers flashing the torches. When it is proved that number of fire arms were used in the present case, multiple fire arm wounds are found on the body of Ram Shanker Pandey is also a corroborative evidence for the fact stated as ocular witness by PW-1, some country made cartridges which had sub standard gun powder of rough quality does not completely burnt and which can be into existence the blackening around the wound even if the fire made from a distance of more than 4 to 5 feet. The above finding made by Trial Judge is correct. The quality of gun powder may cause blackening when shot is made even from a distance of 8 to 10 feet cannot be ruled out. Moreover, Ramprakash is the eye witness who had seen the entire incident from his roof and when the same occurred, on the ground it was not possible for him to observe the correct distance and direction from the roof. Moreover, Ramprakash is the eye witness who had seen the entire incident from his roof and when the same occurred, on the ground it was not possible for him to observe the correct distance and direction from the roof. As such if any, discrepancy occurs with regard to the direction of the wound caused by the fire arm injury and distance from the deceased when fired it would be immaterial on the strength of the ocular testimony of the witnesses and is not of such kind which can completely over rule the incident of firing upon the deceased Ram Asrey and Ram Shanker Pandey by the accused-appellants. 45. Hon'ble Supreme Court in Thoti Manohar Vs. State of Andhra Pradesh reported in (2012) AIR SCW 3752 in para-30 has held as under:- "30. The learned counsel for the appellant has endeavoured hard to highlight certain discrepancies pertaining to time, situation of the land, number of persons, etc., but in our considered opinion, they are absolutely minor in nature. The minor discrepancies on trivial matters not touching the core of the matter cannot bring discredit to the story of the prosecution. Giving undue importance to them would amount to adopting a hyper-technical approach. The Court, while appreciating the evidence, should not attach much significance to minor discrepancies, for the discrepancies which do not shake the basic version of the prosecution case are to be ignored. This has been so held in State of U.P. v. M.K. Anthony[7]; Appabhai and another v. State of Gujarat[8]; Rammi alias Rameshwar v. State of Madhya Pradesh[9]; State of H.P. v. Lekh Raj and another[10]; Laxman Singh v. Poonam Singh[11] and Dashrath Singh v. State of U.P.[12] No evidence can ever be perfect for man is not perfect and man lives in an imperfect world. Thus, the duty of the court is to see with the vision of prudence and acceptability of the deposition regard being had to the substratum of the prosecution story. In this context, we may reproduce a passage from the decision of this Court in State of Punjab v. Jagir Singh Baljit Singh and Karam Singh[13], wherein H.R. Khanna, J., speaking for the Court, observed thus:- “A criminal trial is not like a fairy tale wherein one is free to give flight to one’s imagination and phantasy. In this context, we may reproduce a passage from the decision of this Court in State of Punjab v. Jagir Singh Baljit Singh and Karam Singh[13], wherein H.R. Khanna, J., speaking for the Court, observed thus:- “A criminal trial is not like a fairy tale wherein one is free to give flight to one’s imagination and phantasy. It concerns itself with the question as to whether the accused arraigned at the trial is guilty of the crime with which he is charged. Crime is an event in real life and is the product of interplay of different human emotions. In arriving at the conclusion about the guilt of the accused charged with the commission of a crime, the court has to judge the evidence by the yardstick of probabilities, its intrinsic worth and the animus of witnesses. Every case in the final analysis would have to depend upon its own facts. Although the benefit of every reasonable doubt should be given to the accused, the courts should not at the same time reject evidence which is ex facie trustworthy on grounds which are fanciful or in the nature of conjectures.” 46. On the basis of above discussions with regard to the facts, evidences and materials placed and proved by the prosecution, the answer to the first point framed hereabove for our determination is that prosecution has been successful in proving it's case against the accused-appellants in trial beyond all reasonable doubts. Non production of all the injured witnesses 47. The appellant raised contention casting doubt as to the prosecution's failure that out of two prosecution witness of the incident who are injured namely Kumari Girisha and Smt. Naval Kishori only Smt. Naval Kishori was examined as PW-2, whereas Kumari Girisha was not produced before the court for examination. This argument may have some force only in case the non-production of one of the injured witnesses caused prejudice to the case of defence. Here PW-2, Naval Kisori and Kumari Girisha both are the near relative to the deceased Ram Asrey. The medical examination report as proved by PW-5, Dr. R. Prasad is proved. From the medical examination report it becomes amply clear that injured Kumari Girisa was a girl of teenage about 15 years old and the incident as happened is sufficiently proved by the PW-2, (mother of Kumari Girisha and wife of the decease Ram Asrey). The medical examination report as proved by PW-5, Dr. R. Prasad is proved. From the medical examination report it becomes amply clear that injured Kumari Girisa was a girl of teenage about 15 years old and the incident as happened is sufficiently proved by the PW-2, (mother of Kumari Girisha and wife of the decease Ram Asrey). This is on the option of prosecution to examine all its witnesses or some or any one of them to prove the case. 48. Hon'ble the Supreme Court in Avtar Singh Vs. State of Haryana and Kripal Singh @ Pala & Ors. Vs. State of Haryana & Ors. reported in 2012 9 SCC 432 in its para-19 has held as under:- "19. The law on this aspect can be succinctly stated to the effect that in order to prove the guilt of the accused, the prosecution should make earnest effort to place the material evidence both oral and documentary which satisfactorily and truthfully demonstrate and fully support the case of the prosecution. Where there were several persons stated to have witnessed the incident and the prosecution examined those witnesses who were able to depose the nature of offence committed more accurately leaving no room for doubt about the involvement of the accused in the occurrence and the extent of their involvement with specific overt act and also were able to withstand the cross-examination by maintaining the sequence and the part played as originally stated, it will be wholly irrelevant and unnecessary to multiply the number of witnesses to repeat the same version." 49. The prosecution while opening it's case during trial has option to state by what evidence it proposes to prove the guilt of the accused, therefore, one cannot compel the prosecution to produce any witness to which the prosecution has not examined. Further Section 134 of the Indian Evidence Act also emphasizes on the quality of evidence and witness, not on the quantity. Section 134 of Indian Evidence Act, 1972 runs as under:- "134. Number of witnesses.—No particular number of witnesses shall in any case be required for the proof of any fact." 50. Hon'ble the Supreme Court in Hukum Singh & Ors. Vs. State of Rajasthan reported in 2000 (41) ACC 662 in para 12 has discussed the option of prosecution to examine its own witnesses and the effect of such non-examination in given circumstances, which reads as under:- "12. Hon'ble the Supreme Court in Hukum Singh & Ors. Vs. State of Rajasthan reported in 2000 (41) ACC 662 in para 12 has discussed the option of prosecution to examine its own witnesses and the effect of such non-examination in given circumstances, which reads as under:- "12. When the case reaches the stage envisaged in Section 231 of the Code the Sessions Judge is obliged to take all such evidence as may be produced in support of the prosecution. It is clear from the said Section that the Public Prosecutor is expected to produce evidence in support of the prosecution and not in derogation of the prosecution case. At the said stage the Public Prosecutor would be in a position to take a decision as to which among the persons cited are to be examined. If there are too many witnesses on the same point the Public Prosecutor is at liberty to choose two or some among them alone so that the time of the court can be saved from repetitious depositions on the same factual aspects. That principle applies when there are too many witnesses cited if they all had sustained injuries at the occurrence. The Public Prosecutor in such cases is not obliged to examine all the injured witnesses. If he is satisfied by examining any two or three of them, it is open to him to inform the court that he does not propose to examine the remaining persons in that category. This will help not only the prosecution for relieving itself of the strain of adducing repetitive evidence on the same point but also helps the court considerably in lessening the workload. Time has come to make every effort possible to lessen the workload, particularly those courts crammed with cases, but without impairing the cause of justice." 51. Honorable the Supreme Court in Veer Singh & Ors. Vs. State of U.P. reported in 2014 2 SCC 455 in para 21 and 22 has held as under:- "21. The legal system has laid emphasis on value, weight and quality of evidence rather than on quantity multiplicity or plurality of witnesses. It is not the number of witnesses but -quality of their evidence which is important as there is no requirement under the Law of Evidence that any particular number of witnesses is to be examined to prove/disprove a fact. Evidence must be weighed and not counted. It is not the number of witnesses but -quality of their evidence which is important as there is no requirement under the Law of Evidence that any particular number of witnesses is to be examined to prove/disprove a fact. Evidence must be weighed and not counted. It is quality and not quantity which determines the adequacy of evidence as has been provided under Section 134 of the Evidence Act. As a general rule the Court can and may act on the testimony of a single witness provided he is wholly reliable. (Vide: Vadivelu Thevar and Anr. vs. State of Madras AIR 1957 SC 614 ; Kunju @ Balachandran vs. State of Tamil Nadu AIR 2008 SC 1381 ; Bipin Kumar Page 21 21 Mondal vs. State of West Bengal AIR 2010 SC 3638 ; Mahesh and Another vs. State of Madhya Pradesh (2011) 9 SCC 626 ; Prithipal Singh and ors. vs. State of Punjab and anr. (2012) 1 SCC 10 ; Kishan Chand vs. State of Haryana JT 2013 (1) SC 222 and Gulam Sarbar vs. State of Bihar (Now Jharkhand) - 2013 (12) SCALE 504 ). 22. In the present case we are left with the sole testimony of injured eye-witness PW4 Harbans Kaur. She has lost all the members of her family in the attack during the occurrence. -There is no reason for her to falsely implicate any of the accused in the case. On the contrary she would only point out the correct assailants who are responsible for killing her family members. We are of the considered view that the testimony of PW4 Harbans Kaur is cogent, credible and trustworthy and has a ring of truth and deserves acceptance. All the 12 victims of the occurrence died of homicidal violence is established by the oral testimony of the doctors who Page 22 conducted autopsies on their bodies and the certificates issued by them to that effect." 52. The prosecution no doubt has strict burden to prove its case beyond all reasonable doubts. In the present case, the prosecution by its witnesses proved the case beyond all reasonable doubts. The defence has tried to cause some doubt on the very genesis of the incident saying 'on 21/22.6.1985 a dacoity was committed by some unknown assailants in the house of informant wherein Ram Asrey and Ram Shanker Pandey were killed and Naval Kisori and Kumari Girisa sustained injuries'. The defence has tried to cause some doubt on the very genesis of the incident saying 'on 21/22.6.1985 a dacoity was committed by some unknown assailants in the house of informant wherein Ram Asrey and Ram Shanker Pandey were killed and Naval Kisori and Kumari Girisa sustained injuries'. In cross examination from PW-1 only a suggestion was given to him by learned counsel for the defence, is it right to say that a dacoity was committed in his house and he falsely implicated the accused appellant, he firmly stated, no this is wrong. He denied another suggestion given to him impliedly that after the incident some articles from his house were not found. He firmly stated that he knows about everything which were present in his house and all those things were present as such after the incident. Likewise PW-2 was also given a suggestion that was there a dacoity committed in her house? She firmly denied. This is important here to discuss that when a defence has been specifically taken by the accused-appellant though no strict proof of such defence is required but if the case of prosecution is proved beyond all reasonable doubts, then onus lies on the accused to prove it's case of defence at least on preponderance of probabilities. 53. In the case in hand while the prosecution witness denied flatly the suggestion as to the commission of dacoity in the house of informant on the unfateful night of 21/22.6.1983 at about 1:00 a.m. and proved beyond all reasonable doubt the commission of offence by the accused-appellant, then an opportunity was available with the accused-appellant to make query in cross examination with PW-8, the Investigating Officer, about commission of dacoity if any on the date of incident whether reported to him. But not a single question was asked from the Investigating Officer to this effect. Ram Shanker Pandey who died of gun shot injury in the incident was not family member of the informant. He was neighbour, proved to rushed to the scene of incident on hearing the noise of fire and hue and cry of injured witnesses. The Investigating Officer was not asked any question about any different cause of his death than reported by the informant. In this way it cannot be said that atleast on preponderance of probabilities the accused-appellants have shown their case set in defence as probable. The Investigating Officer was not asked any question about any different cause of his death than reported by the informant. In this way it cannot be said that atleast on preponderance of probabilities the accused-appellants have shown their case set in defence as probable. As such the accused-appellants could not cast any doubt as against the proved case of prosecution. 54. We therefore in answer to the second point framed by us for determination in appeal, hold that accused-appellants against the proved case of prosecution beyond all reasonable doubt remained unsuccessful to show even on preponderance of probabilities the case of defence that dacoity was committed on the date and time of incident i.e., 21/22.6.1985 in the house of informant and they were falsely implicated by the informant by reason of enmity. Thus, they failed to cause any reasonable doubt against the case of prosecution. 55. We are therefore, of the opinion that the case of prosecution, proved by its witnesses beyond all reasonable doubt, is found sufficient to record conviction by the Trial Judge and award of sentence of life imprisonment under Section 302/34 I.P.C. and imprisonment for three years under Section 307 I.P.C. read with Section 34 I.P.C. to the accused-appellants. 56. Criminal Appeal No. 313 of 1986 (Jata Shanker & Ors. Vs. State of U.P.) and Criminal Appeal No. 459 of 1986 (Raju @ Chandra Prakash Vs. State of U.P.), both arise out of the judgment and order dated 03.05.1986 passed by learned Special Judge, Unnao in Sessions Trial No. 406 of 1985, are dismissed, Conviction and sentence of accused-appellants, namely, Jatashanker, Mukesh, Rakesh and Raju @ Chandra Prakash for life imprisonment under Section 302/34 I.P.C. and rigorous imprisonment for three years under Section 307/34 I.P.C. is hereby confirmed. The accused-appellants, namely, Jatashanker, Mukesh, Rakesh and Raju @ Chandra Prakash are on bail. Their bail bonds and surety bonds are rejected and sureties are discharged. The accused appellants are directed to surrender before the court of Chief Judicial Magistrate, Unnao within 15 days from the date of order. In case, they do not surrender within the aforesaid time, the Chief Judicial Magistrate, Unnao in order to ensure compliance shall adopt all coercive measures in accordance with law and send them to Jail for undergoing sentence of imprisonment. Copy of the judgment be sent to Sessions Judge, Unnao to ensure compliance under intimation to this Court. In case, they do not surrender within the aforesaid time, the Chief Judicial Magistrate, Unnao in order to ensure compliance shall adopt all coercive measures in accordance with law and send them to Jail for undergoing sentence of imprisonment. Copy of the judgment be sent to Sessions Judge, Unnao to ensure compliance under intimation to this Court. Copy of the judgment be also provided to the accused-appellants. Office is directed to enter the judgment in compliance register maintained for the purpose in the Court.