JUDGMENT : 1. Heard Sri Gajendra Pratap, learned Senior counsel assisted by Smt. Abhilasha Singh, learned amicus curiae for the appellant, Sri Aniruddha Chaturvedi, learned counsel for the informant and Sri Amit Sinha, learned AGA assisted by Ms. Mayuri for the State. 2. Capital Case No.8 of 2020 arises out of judgment of conviction and sentence passed by Additional Sessions Judge-IV/Special Judge (E.C. Act), Banda in Sessions Trial No.93 of 2018, arising out of Case Crime No.086 of 2018, under Sections 302/34, 201, 120-B IPC, Police Station Kotwali Nagar, District Banda, wherein death penalty has been imposed on the accused appellant. Records relating to the proceedings of court below have been forwarded to this Court under Section 366 Cr.P.C. for confirmation of death sentence. It is registered as Capital Reference No.7 of 2020. The appeal filed by the informant under Section 372 Cr.P.C. challenging the acquittal of accused Smt. Deva and Sri Devi Deen @ Bhawani Deen Yadav being Criminal Appeal u/s 372 Cr.P.C. No.21 of 2021 is also connected with the Capital Appeal. All three cases are heard together and are being disposed of by this common judgment. 3. A brutal incident occurred during the intervening night of 30 and 31 January, 2018 in which Mahadev, his wife Chunni and two sons Pawan and Raj Kumar were done to death. The incident was allegedly seen by the daughter of the deceased, namely Ranshi (PW-2). Ranshi came to the house of Smt. Urmila (PW-3), who happens to be her sister-in-law and informed the incident as per which the accused had brutally murdered all the four deceased. PW-3 informed such facts to her husband Munni Lal (not produced). Munni Lal in turn informed the incident to Raghunandan (PW-1), who happens to be the elder brother of deceased Mahadev. Consequently, a written report was got scribed by Munni Lal on the basis of information received from Raghunandan (Ex.Ka.1). Based upon such written report, a First Information Report came to be registered at 11.00 AM on 31.01.2018 at Police Station Kotwali Nagar, District Banda. Information of the incident was received at the Police Station at 10.15 AM and the FIR was registered under Section 302 IPC as Case Crime No.86 of 2018, Police Station Kotwali Nagar, District Banda. The FIR is against named accused Golu. It is the prosecution case that Golu is the nickname of accused appellant Amit Yadav. 4. Information of the incident was received at the Police Station at 10.15 AM and the FIR was registered under Section 302 IPC as Case Crime No.86 of 2018, Police Station Kotwali Nagar, District Banda. The FIR is against named accused Golu. It is the prosecution case that Golu is the nickname of accused appellant Amit Yadav. 4. Pursuant to the above report lodged in the matter, inquest commenced at 11.20 onwards and were concluded by the afternoon. The bodies were sealed and as per the suggestion of the inquest witnesses, the dead-bodies were sent to mortuary for conduct of postmortem. Postmortem has also been conducted on 31.1.2018 at 5.30 in the evening. As per the postmortem, all four deceased died on account of ante-mortem injuries specified hereinafter:- Autopsy Report 1-Exhibit ka-2-A Name of Deceased Mahadev (male) Age:- 40 years Physical Examination :Average built body Height 164 cm Rigor Mortis present all over body. Anti Mortem Injuries:- 1) Incised wound size of 10cm x 2cm bone deep present on anterio lateral surface of right side of neck 4 cm below from right lobule. 2) Incised wound size 10cm x 0.4 cm bone deep present on anterio lateral surface of right side of neck 1 cm below from injury no 1 trachea incised esophagus incise. All the muscle and soft tissue incised. Eyes: Mouth:, Nails: Tongue and Nails: Natural Orifices: NAD Scalp: NAD Skull: noted Membranes: Pale Brain: Pale Orbital Nasals: NAD Neck: Noted Mouth, Tongue: NAD Larynx and vocal cords: Noted Trachea: Noted Hyoid Bone: Noted Chest: NAD Ribs and chest wall: NAD Pleural Cavities: NAD Lungs: Pale Trachea and bronchial Tree: NAD Pleural: Pale Peritoneal cavity: NAD Pleural Cavities: NAD Lungs: Pale Heart: empty Large blood vessels: right carotid vessels incised Abdomen: NAD Stomach: 200 gm pasty material present. Small Intestine: gases present Large Intestine: gases with fecal matter Liver: Pale Gall bladder: half full Urinary bladder: 40 ml urine present Spleen: pale Kidney: pale Pelvic Cavity Tissue: NAD Pelvic Bones: NAD Time of Death: about half of a day Cause of death: shock and haemorrhage as a result of anti-mortem injuries Autopsy Report 2-Exhibit ka-3-A Name of Deceased Chunni Devi (female) Age:- 35 years Physical Examination : Average built body Height 158 cm Rigor Mortis present all over body. Anti Mortem Injuries:- 1) Lacerated wound size 2.0 x 2.0 present on left side of face 0.5 cm below from left eye muscle deep. 2) Contusion size 4 x 4 cm on face just below injury no 1. 3) Incised wound size of 8.00cm x 1.00cm present on posterio lateral surface of right side of neck 4.5 cm below from right ear lobe with fractured 3rd and 4th cervical vertebra. 4) Abrasion size 3 x 1 cm present on upper part of right arm 3 cm below from lateral end of right clavicle. 5) Contusion size 2 x 1 cm present on anterio medial surface of right arm 11 cm below from lateral end of right clavicle. Eyes : open Mouth:- Nails:- Tongue and Nails: NAD Natural Orifices: NAD Scalp : NAD Skull: NAD Membranes: Pale Brain: NAD Orbital Nasals: Noted Neck: NAD Mouth, Tongue: NAD Larynx and vocal cords: NAD Trachea: Noted Hyoid Bone: Noted Chest: Noted Ribs and chest wall: NAD Ribs: NAD Oesophagus: NAD Trachea and bronchial Tree: NAD Pleural: NAD Peritoneal cavity: NAD Pleural Cavities: NAD Lungs: Pale Heart: incised right carotid vessels Large blood vessels: NAD Abdomen: Noted Stomach: 200 gm pasty material present. Small Intestine: gases present Large Intestine: gases with fecal matter Liver: Pale Gall bladder: Urinary bladder: 20 ml urine present Spleen: pale Kidney: pale Pelvic Cavity Tissue: NAD Pelvic Bones: NAD Time of Death : about half of a day Cause of death : shock and haemorrhage as a result of anti-mortem injuries Autopsy Report 3-Exhibit ka-4-A Name of Deceased Pawan Kumar (male) Age:- 10 years Physical Examination :Average built body Height 139 cm Rigor Mortis present all over body. Anti Mortem Injuries:- 1) Incised wound size 6 x 1.5 cm bone deep present on back of neck at cervico vertebral junction (cervical joints) with fractured 1st cervical vertebra. 2) Abraded contusion size 6 x 3 cm present on posterio lateral surface of right side of neck 1.5 cm below from right ear lobule. 3) Abraded contusion size 3 cm x 1.5 cm present on anterior surface of upper right arm 5 cm lateral from right axilla. 4) Lacerated wound size 2.5 cm x 1.5 cm present on left side of upper lip with loss of left molar tooth. 3) Abraded contusion size 3 cm x 1.5 cm present on anterior surface of upper right arm 5 cm lateral from right axilla. 4) Lacerated wound size 2.5 cm x 1.5 cm present on left side of upper lip with loss of left molar tooth. 5) Lacerated wound size 2 x 1 cm bone deep present on upper right scapular region 5 cm below from mid of right clavicle. Eyes: semi open Mouth: semi open, Nails: Tongue and Nails: NAD Natural Orifices: NAD Scalp: NAD Skull: NAD Membranes: Pale Brain: NAD Orbital Nasals: NAD Neck: NAD Mouth, Tongue: NAD Larynx and vocal cords: NAD Trachea: NAD Hyoid Bone: NAD Chest: Noted Ribs and chest wall: NAD Ribs: NAD Oesophagus: NAD Trachea and bronchial Tree: NAD Pleural: NAD Peritoneal cavity: NAD Pleural Cavities: NAD Lungs: Pale Heart: empty Large blood vessels: NAD Abdomen: Noted Stomach: 200 gm pasty material present. Small Intestine: gases present Large Intestine: gases with fecal matter Liver: Pale Gall bladder: half full Urinary bladder: 30 ml urine present Spleen: pale Kidney: pale Pelvic Cavity Tissue: NAD Pelvic Bones: NAD Time of Death: about half of a day Cause of death: shock and haemorrhage as a result of anti-mortem injuries Autopsy Report 4-Exhibit ka-6-A Name of Deceased Raj Kumar Yadav (male) Age:- 8 years Physical Examination :Average built body Height 140 cm Rigor Mortis present all over body. Anti Mortem Injuries:- 1) Incised wound size 8 x 3 cm bone deep present on postiro-lateral surface of neck of left side .5 cm below from left ear lobe obliquely placed margins regular. 2) Incised wound size 8 x 5 cm present on postiro-lateral surfce of neck 1 cm below from injury no 1 with incised 3rd and 4th cervical vertibri. 3) Abraded contusion size 5 cm x 3 cm present on right side face just below right eyes. Mud present around right side face. 4) Abraded contusion size 2 x 1 cm present on top of right shoulder. 3) Abraded contusion size 5 cm x 3 cm present on right side face just below right eyes. Mud present around right side face. 4) Abraded contusion size 2 x 1 cm present on top of right shoulder. Eyes: Mouth: , Nails: Tongue and Nails: NAD Natural Orifices: NAD Scalp: NAD Skull: NAD Membranes: Pale Brain: NAD Orbital Nasals: NAD Neck: Noted Mouth, Tongue: NAD Larynx and vocal cords: NAD Trachea: NAD Hyoid Bone: NAD Chest: Noted Ribs and chest wall: NAD Ribs: NAD Oesophagus: NAD Trachea and bronchial Tree: NAD Pleural: NAD Peritoneal cavity: NAD Pleural Cavities: NAD Lungs: Pale Heart: empty Large blood vessels: incised of carotid vessel Abdomen: Noted Stomach: 100 gm pasty material present. Small Intestine: gases present Large Intestine: gases with fecal matter Liver: Pale Gall bladder: half full Urinary bladder: 20 ml urine present Spleen: pale Kidney: pale Pelvic Cavity Tissue: NAD Pelvic Bones: NAD Time of Death: about half of a day Cause of death: shock and haemorrhage as a result of anti-mortem injuries 5. Investigation proceeded further in the matter and the accused Amit Yadav @ Golu was arrested on 6.2.2018. Two other co-accused namely Smt. Deva and Sri Devi Deen @ Bhawani Deen Yadav were also arrested on 7.2.2018 and 8.2.2018. According to the prosecution, an Aadhar card of accused Amit Yadav @ Golu was recovered from the house of the deceased vide Ex.Ka.6. Blood stained earth was also recovered from the house of the accused on 31.1.2018 vide Ex.Ka.7. A blood stained piece of mattress was also recovered from the place of occurrence vide Ex.Ka.8. Blood stain earth and plain earth were also recovered from the place of occurrence on 31.1.2018 vide Ex.Ka.9. The prosecution claims to have recovered an axe from the house of accused, on his pointing out, vide Ex.Ka.10. The blood stained cloth of the accused was allegedly hidden in the house of accused which were also recovered on his pointing out vide Ex.Ka.11. 6. It is worth noticing at the outset that all aforesaid recoveries were witnessed by Munni Lal, Chote Lal and Om Prakash, none of whom have been produced by the prosecution. There is thus no independent witness to any of the recoveries. There is no confessional statement of the accused on record pursuant to which such recovery was made nor any such statement is exhibited during the trial. There is thus no independent witness to any of the recoveries. There is no confessional statement of the accused on record pursuant to which such recovery was made nor any such statement is exhibited during the trial. Even the contents of disclosure made by the accused are not disclosed or proved. 7. Investigation ultimately concluded with submission of charge-sheet against the accused Amit Yadav @ Golu, Smt. Deva and Sri Devi Deen @ Bhawani Deen Yadav. Smt. Deva and Sri Devi Deen @ Bhawani Deen Yadav have been acquitted by the trial court vide the judgment under challenge. The acquittal is under challenge in the appeal filed by the informant under Section 372 Cr.P.C. Smt. Deva and Sri Devi Deen @ Bhawani Deen Yadav happens to the maternal aunt and uncle of the accused Amit Yadav @ Golu. 8. The concerned Magistrate committed the case to the court of Sessions on 17.5.2018. Charges were framed against the accuseds on 19.12.2018 under Section 302 read with Section 34 IPC read with Section 201 and 120B IPC. All the accuseds denied the charges and demanded trial. 9. The prosecution in order to prove its case has produced following documentary evidence:- Sr. No. Name of Document Proved by Exh. Ka-1 Tahreer PW-1 Exh. Ka-2 Inquest memo of Mahadev PW-1 Exh. Ka-3 Inquest memo of Chunni Devi PW-1 Exh. Ka-4 Inquest memo of Pawan Kumar PW-1 Exh. Ka-5 Inquest memo of Raj Kumar PW-1 Exh. Ka-2-A Autopsy report of Mahadev PW-4 Exh. Ka-3-A Autopsy report of Chunni Devi PW-4 Exh. Ka-4-A Autopsy report of Pawan Kumar PW-4 Exh. Ka-5-A Autopsy report of Raj Kumar PW-4 Exh. Ka-6 Recovery memo of aadhar card of Golu PW-5 Exh. Ka-7 Recovery memo of soil from Golu house PW-5 Exh. Ka-8 Recovery memo of mattress PW-5 Exh. Ka-9 Recovery memo of soil from crime spot PW-5 Exh. Ka-10 Recovery memo of murdered weapon PW-5 Exh. Ka-11 Recovery memo of cloth of accused PW-5 Exh. Ka-12 Site plan of crime spot PW-5 Exh. Ka-13 Arrest memo of Amit @ Golu PW-5 Exh. Ka-14 Arrest memo of Devi Deen PW-6 Exh. Ka-15 Arrest memo of Deva PW-6 Exh. Ka-16 Charge-sheet PW-6 Exh. Ka-17 FSL Report 10. In addition to the above documentary evidence, the prosecution has also led oral evidence of following witnesses:- “1. Ka-12 Site plan of crime spot PW-5 Exh. Ka-13 Arrest memo of Amit @ Golu PW-5 Exh. Ka-14 Arrest memo of Devi Deen PW-6 Exh. Ka-15 Arrest memo of Deva PW-6 Exh. Ka-16 Charge-sheet PW-6 Exh. Ka-17 FSL Report 10. In addition to the above documentary evidence, the prosecution has also led oral evidence of following witnesses:- “1. Raghunandan aged 55 years (P.W.-1), elder brother of accused presented as informant of the case and witness of inquest. His chief examination was recorded on 09.05.19 and the cross examination took place on 01.08.19, 16.08.19, 21.08.19. P.W.-1 deposed before the court that deceased was his real brother and together with him, he had three brothers. He is the eldest and the deceased was the youngest. He lived in the village along with his other two brothers for the past thirty years. His house adjoins the house of deceased Mahadev. His other brother namely Sukh Nandan lived a few houses apart. Mahadev was residing along with his wife Chunni, three sons and a daughter. On 31.01.2018 @5:30 AM his nephew Munni Lal s/o Sukh Nandan came and informed him that Golu has killed Mahadev, his wife and two sons the previous night. Ranshi, the daughter of deceased Mahadev informed about it. Ranshi told him that she had hidden herself and could not see as to who else was present along with Golu. On receiving such information PW-1 reached the house of deceased and saw the four dead bodies of Mahadev, Chunni and their two sons Pawan and Raj Kumar lying in the verandah and the room. The third son Awadh Naresh was lying wrapped in a blanket. He was scared. He got the written report scribed by his nephew Munni Lal and put his thumb impressions on it. He proved the contents of the written report which was marked as Ex.Ka.1. He also proved his signatures on the inquest memo prepared in his presence. The dead bodies were sealed and sent for autopsy. Later, after a few days Awadh Naresh told him that Deva and Devi Deen too were involved in the incident along with Golu. Mahadev had bought some land from the father of Devi Deen. Some more land was purchased again from Devi Deen. Mahadev paid the entire amount but the registry of the land was not done. Later, after a few days Awadh Naresh told him that Deva and Devi Deen too were involved in the incident along with Golu. Mahadev had bought some land from the father of Devi Deen. Some more land was purchased again from Devi Deen. Mahadev paid the entire amount but the registry of the land was not done. The price of the land increased in between and Devi Deen was refusing to execute the registry. For this reason Golu killed Mahadev and his three family members. His statement was recorded by IO and he also got the crime spot inspected. The witness was cross-examined extensively by the defence counsels. 2. Ranshi (PW-2) aged 8 years is the daughter of deceased and was presented as eye witness of the case. Chief examination of this witness was done on 29.8.19 and the cross examination was held on 29.08.19, 19.09.19, 25.09.19. P.W.-2 deposed before the court that it's been more than a year now since her family members were done to death. On that day she was sleeping with her father and mother. She was on the same cot with her mother. Her three brothers were sleeping in the room next to her room. Pawan Kumar and Raj Kumar were on one cot while Awadh Naresh was on plank. Around midnight she woke up along with her mother on hearing the screams of her father. She saw that Golu was killing her father with an axe. Her mother ran to save her father pleading "don't kill". Golu pushed her back and killed her mother too with the axe. The witness got scared and hide herself behind a chair. Buffaloes were tied in that room and the chair was behind these buffaloes. Bulb was lighted in the room. Accused Golu then searched for her and went upstairs and later came back. Both the brothers Pawan Kumar and Raj Kumar tried to run outside out of fear. Deva and Devideen were standing outside and scolded them to go back inside the house. Golu killed both her brothers and left from the front door. She witnessed the murder of her brothers through a hole in a wall. She kept hiding there whole night. At dawn she went to Munni Lal’s house which was nearby and narrated them the entire incident. She asked them to call the police. Police came to the crime spot. Golu killed both her brothers and left from the front door. She witnessed the murder of her brothers through a hole in a wall. She kept hiding there whole night. At dawn she went to Munni Lal’s house which was nearby and narrated them the entire incident. She asked them to call the police. Police came to the crime spot. The villagers and police man enquired about the incident from her. She told them of entire incident. Her brother Awadh Naresh kept sleeping there and woke up in the morning on being woken up. The witness was cross examined at length. In the cross examination she stated that she did not wake up her brother Awadh Naresh as she feared scolding from him. 3. Urmila w/o Munni Lal, aged about 27 years was presented as a witness of fact. Her testimony is relied upon as res gestae. Her examination-in-chief was held on 30.09.19 and the cross examination took place on 30.09.19, 03.10.19. P.W.-3 deposed before the court that the incident took place on 31.01.2018. It was wednesday night. Her father in law are three brothers. All the three lived separately next to each other and have their houses built. Raghunandan and Mahadev live adjacent to each other. Her house is a few steps away. She was sleeping along with her two daughters inside the house. Her husband was sleeping outside under the shed. On the day of incident Ranshi knocked the door early morning around 4 or 5 AM and told the witness that Golu has killed her parents and Deva and Devideen were standing on the door of the house. When her brothers tried to flee away they were pushed inside the house by Devideen. Golu killed them too. She hide herself behind a chair kept in the cattle room. She woke her husband and narrated the entire incident. Her husband Munni Lal went to house of Mahadev and screamed loudly. She along with villagers and others also reached on hearing screams. Police was informed. Police too reached. The dead bodies were sealed and were sent for post-mortem. She was enquired about the incident by I.O. Deceased Mahadev wanted to have the registry of the land from Devideen, which Devideen was avoiding due to rise in price of land. This was the reason behind enmity. 4. Police was informed. Police too reached. The dead bodies were sealed and were sent for post-mortem. She was enquired about the incident by I.O. Deceased Mahadev wanted to have the registry of the land from Devideen, which Devideen was avoiding due to rise in price of land. This was the reason behind enmity. 4. Dr Atul Verma (PW-4) Medical officer performed autopsy of all the four dead bodies. He is a formal witness and has proved the postmortem reports. P.W.-4 deposed before the court that he conducted autopsy of all the four dead bodies on 31.01.2018 at the mortuary. He proved all the post mortem reports which were marked as exhibits. The cause of all the deaths were shock and haemorrhage due to anti mortem injuries. Time of deaths was around half a day. The witness was cross examined. 5. Inspector Shahsi Kumar Pandey is the first Investigator of the case and has been presented as formal witness. P.W.-5 deposed before the court that he was the first investigator of the crime. He recorded statement of witnesses and inspected the crime spot. He prepared site plan and raided several places looking for Golu. He arrested the accused Golu and recorded his statement. He also recovered the weapon on identification of accused from his house and prepared recovery memo of it. He recovered the clothes of accused which he was wearing during the crime and sent all recovered items for forensic test to F.S.L Lucknow He proved all the formal papers prepared by him during the investigation of the case. The same were marked as exhibits. The witness was cross examined by the defence counsels. 6. Inspector Ram Niwas Yadav is the second investigator of the case and is presented as PW-6. He has deposed before the court that he conducted the part investigation of the instant case. He recorded statements of witnesses and arrested the two accused. He also recorded their statements and on finding sufficient evidences against them submitted charge sheet in court against all the three accused. He proved all the formal papers prepared by him during the investigation of the case. The same were marked as exhibits The witness was cross examined by the defence counsels.” 11. Trial court evaluated the evidence placed on record by the prosecution. The circumstances appearing on record against the accused have been specifically noticed. He proved all the formal papers prepared by him during the investigation of the case. The same were marked as exhibits The witness was cross examined by the defence counsels.” 11. Trial court evaluated the evidence placed on record by the prosecution. The circumstances appearing on record against the accused have been specifically noticed. Broad aspects arising in the case can be categorized as under:- “1) Motive behind the crime 2) Identity of accused 3) Inquest done prior to F.I.R 4) Injuries nature 5) Source of light 6) Non adducing Munni Lal -the tahreer scriber 7) Presence of Ranshi on the crime spot. 8) Recovery of weapon and clothes of accused Golu” 12. On the aspect of motive the evidence has been examined by the court below and a categorical finding has been returned that the prosecution case for attributing motive to the accused to commit the offence is not reliable. It has been found that the flow of motive goes from the deceased to Devi Deen @ Bhawani Deen Yadav, i.e. maternal uncle of the accused and not from the accused or his maternal uncle Devi Deen @ Bhawani Deen Yadav to the deceased Mahadev. The consideration on the aspect of motive is enumerated in para 8 to 10 of the judgment which is reproduced hereinafter:- “8. Motive behind the crime has been explained by the prosecution witnesses The deceased had bought some property from the accused Devi Deen long back. The land was not registered. Mahadev deceased asked him for registry of the land on which he refused for the reason that the land prices increased more than ten times. This fact has come in evidence of P.W.-1 and 3. Learned defence stated that the motive is baseless Deceased is living on the disputed land which is 8 biswas from a very long time. He got his house constructed and no objection was ever done by Devi Deen. No civil suit or any kind of objection on papers ever done, nor any legal notice to vacate the land was issued by the accused. Devideen is a government servent-Lekhpal and is of well to do status. If he denies the registration of land still he is in a beneficial and dominating position. He is at no loss, whereas Mahadev is a low income class milk seller. Devideen is a government servent-Lekhpal and is of well to do status. If he denies the registration of land still he is in a beneficial and dominating position. He is at no loss, whereas Mahadev is a low income class milk seller. Refusal of registry of land, will be more disadvantageous for Mahadev and he will be at a loss. Devideen never asked the decease to vacate the land. The flow of motive should go from Mahadev to Devideen and not from Devideen to Mahadev. Thus the logical reasoning behind motive is without a concrete substance. This motive also do not fit the scenario of murder. If the accused plan to kill Mahadev and family then why did he left two kids alive. 9. In such circumstance the motive sounds hypothetical. Some newspaper cuttings of 01.02.2018 are also present in record collected by 1.0 during investigation. These newspapers are not a part of evidence. However, it mentions that deceased Mahadev was having illicit relation with bhabhi of accused Golu and that became the cause of murder. Though not brought on record by witnesses probably to avoid defamation. 10. Motive always locks up in the mind of the accused and some time it is difficult to unlock. People do not act wholly without motive. The failure to discover the motive of an offence does not signify its non-existence. The failure to prove motive is not fatal as a matter of law. Proof of motive is never an indispensable for conviction. When facts are clear it is immaterial that no motive has been proved. Therefore, absence of proof of motive does not break the link in connecting the accused with the crime, nor militates against the prosecution case.” 13. Upon evaluation of the evidence on record no illegality or perversity could be shown in the view taken by the trial Judge. The prosecution case essentially relies upon the oral testimony of PW-1, PW-2 and PW-3 as well as recoveries made by the Investigating Officer including that of an axe. This evidence has been relied upon by the court below to hold the accused appellant guilty. 14. PW-1 is the informant and admittedly is not an eye-witness. He has been produced by the prosecution mainly to prove the written report. The manner in which this written report has come into existence is interesting and needs to be noticed. This evidence has been relied upon by the court below to hold the accused appellant guilty. 14. PW-1 is the informant and admittedly is not an eye-witness. He has been produced by the prosecution mainly to prove the written report. The manner in which this written report has come into existence is interesting and needs to be noticed. PW-1 is the elder brother of the deceased Mahadev and his family members. He admits that their relationship was not very cordial. In his examination-in-chief, PW-1 has admitted that a partition had taken place between the brothers about fifteen years back in which no share was given to PW-1 or to the other brother Sukhnandan. The deceased retained the entire property consisting of a house built on three biswa land on the premise that he is his exclusive owner. This had resulted in strained relations. A suggestion has been given that there were differences between the brothers on account of property issue. PW-1 states that the incident was reported to him by Munni Lal, who happens to be the son of other brother Sukhnandan. The written report is thus based upon the disclosure made to PW-1 by Munni Lal and, therefore, the information divulged to PW-1 is hearsay since Munni Lal has not been produced. Interestingly it is Munni Lal who is the scribe. It is not clear as to why the written report was not made by Munni Lal when the incident came to the knowledge of Munni Lal first and he was himself the scribe also. This is more so as the relations between Mahadev and PW-1 were not cordial. Except for proving the written report not much turns on the testimony of PW-1. 15. PW-2 is the sheet anchor of prosecution case. She is six years of age and is the daughter of the deceased. Her testimony has been questioned by the defence on the premise that she was herself was not present in the house and had in fact slept in the house of Munni Lal. The testimony of PW-2 has also been doubted on the ground that she was tutored since part of her testimony implicating Smt. Deva and Sri Devi Deen @ Bhawani Deen Yadav has been disbelieved by the trial court on the ground that her statement is tutored. The testimony of PW-2 has also been doubted on the ground that she was tutored since part of her testimony implicating Smt. Deva and Sri Devi Deen @ Bhawani Deen Yadav has been disbelieved by the trial court on the ground that her statement is tutored. It is, therefore, submitted that once the presence of PW-2 itself is doubtful and part of her testimony has otherwise been disbelieved by the trial court on such ground, it would not be safe to rely upon her testimony. Before adverting to this aspect of the matter, we deem it appropriate to refer to the testimony of PW-3 who is the only other witness of fact in the matter. 16. PW-3 Smt. Urmila happens to be the wife of Munni Lal and she has two daughters. She is the daughter-in-law of Sukhnandan, who happens to be the real brother of the deceased. PW-3 in her examination-in-chief stated that on the date of incident at about 4.00-5.00 AM. PW-2 knocked her door and when she opened the door she (PW-2) informed her that the accused has assaulted her parents and brothers by the axe and Smt. Deva and Sri Devi Deen @ Bhawani Deen Yadav were standing at the door. In the cross-examination, PW-3 has admitted that she is a graduate and her two daughters Laxmi and Kirti used to play with PW-2. She has stated that on the preceding day PW-2 had come to her house to play with her daughters. She has also stated that PW-2 had her meal at her house and she slept in her house. On a question raised by the court PW-3 then came up with a version that after PW-2 had gone to sleep in her house, the mother of PW-2 (deceased Chunni) came and took PW-2 and Laxmi to her house. Later at about 11.00 PM deceased Chunni came to the house of PW-3 to return Laxmi. This part of the statement of PW-3 is a clear improvement from what was stated by her in her previous statement under Section 161 Cr.P.C. Statement of Smt. Urmila was otherwise recorded under Section 161 Cr.P.C. 3-4 days after the incident and till then no such version had been disclosed by her. This part of the statement of PW-3 is a clear improvement from what was stated by her in her previous statement under Section 161 Cr.P.C. Statement of Smt. Urmila was otherwise recorded under Section 161 Cr.P.C. 3-4 days after the incident and till then no such version had been disclosed by her. PW-3 has been contradicted with her previous statement under Section 161 Cr.P.C. where there was no explanation about the fact that though her door was knocked but her husband and devar had not woken up. She has also stated that PW-2 asked her to allow her to sleep with her as she was frightened. This fact, however, was not disclosed in the statement under Section 161 Cr.P.C. PW-3 has also been contracted with her previous statement under Section 161 Cr.P.C. as per which Ranshi had come to her house and had slept there and only woke up in the morning. Her version that Ranshi came to her house at 4.00-5.00 in the morning was also an improvement. PW-3 in her statement had also stated that the light in the house of Mahadev was switched off when she came out of her house after arrival of PW-2. 17. It is in the above backdrop that the statement of PW-2 requires a careful examination. PW-2 had stated that she had gone to sleep in the night alongwith her parents. She was in the same room with her parents while her two brothers were in the other room. As per PW-2 she had gone to sleep at about 10.00-11.00 in the night after having her meals. PW-2 has not stated anything about the visit to the house of PW-3 or about her having her meal the previous night at the house of PW-3. As per PW-2 deceased Mahadev was assaulted by the accused whereupon he screamed and her mother woke up. Mother of PW-2 rushed towards her father to save her where she was also assaulted. PW-2 states that she hid herself behind a chair. She has also stated that the bulb was lighted. This apparently was to convey that there was source of light in the room. Mother of PW-2 rushed towards her father to save her where she was also assaulted. PW-2 states that she hid herself behind a chair. She has also stated that the bulb was lighted. This apparently was to convey that there was source of light in the room. One of the argument advanced on behalf of the defence is that in the event PW-2 had been seen sleeping next to the deceased mother by the accused and in her presence both her parents were assaulted, the possibility of PW2 hiding in same room behind a chair seems highly improbable. From the testimony of PW-2 it is apparent that accused had seen her and if that be so, it would be difficult to believe that he would spare PW-2 or allow her to hid behind a chair, particularly when his intent was to finish off the entire family. PW-2 then comes up with a version that her two brothers who were sleeping in the adjoining room tried to escape but were stopped by Smt. Deva and Sri Devi Deen @ Bhawani Deen Yadav who were standing at the gate. As per PW-2 the two brothers were sent back by Smt. Deva and Sri Devi Deen @ Bhawani Deen Yadav whereafter the accused slaughtered them. This part of the testimony of PW-2 has already been disbelieved by the trial court for the reasons that such plea was clearly a case of improvement. Although this part of the finding is challenged in appeal under Section 372 Cr.P.C. by PW-1 but we find no error in the reasoning assigned by the trial court to disbelieve the testimony of PW-2 to implicate Smt. Deva and Devadeen. No such statement was made under Section 161 Cr.P.C. either by PW-2 or PW-3. The fact that an attempt was made to implicate other family members of accused Golu also indicates that PW-2 was tutored. PW-2 then stated that she saw the incident from the other room by peeping into a hole. In order to examine the correctness of such version, the trial Judge has taken pains to visit the place of occurrence. The trial Judge found that from the hole in the wall it was not possible to see the incident. Para 22 of the trial court judgment is relevant in this regard and is reproduced hereinafter:- “22. In order to examine the correctness of such version, the trial Judge has taken pains to visit the place of occurrence. The trial Judge found that from the hole in the wall it was not possible to see the incident. Para 22 of the trial court judgment is relevant in this regard and is reproduced hereinafter:- “22. The court cannot shut eyes from the fact that the witness is a child and more often children can be easily swayed away and are prone to tutoring, therefore the statement of the child witness should always be scrutinized with great care and caution. In such cases, not only the court has to search for reliable corroborative evidence either oral or documentary, as a matter of prudence, but must also feel satisfied that such a child is not playing in the hands and dictation of any family member or other person who may be in a better position to have a command and dominance over the child and who has some sinister agenda of settling scores with the other party named as accused in the commission of any crime. This precaution is necessary because child witness is amenable to tutoring and often lives in the world of make-believe. The witness Ranshi has not stated in his statement U/ 161 Cr.P.C that Deva and Devideen were present at the door and forced the kids to go inside. Nor the fact is mentioned in the tahreer. Ranshi statement was recorded same day. After the arrest of Golu this fact emerged in the case diary that Deva and Devideen too were involved in the crime. Ranshi statement was recorded only once. During inspection of crime spot when I looked from the key hole where Ranshi witnessed the murder, I found that vision from the hole is limited to next room boundaries only. If someone stands outside the door in the night the possibility to see him is very less. Thus I find statement of Ranshi is filled with material improvement and it hits the base of the case. Deva and Devi Deen were present at their home after the crime. They were arrested after Golu was arrested. Police raided several places in search of Golu as can be seen from the General Diary. Many police teams were searching to Golu. Golu was arrested after 6-7 days of crime and then Deva and Devideen too. Deva and Devi Deen were present at their home after the crime. They were arrested after Golu was arrested. Police raided several places in search of Golu as can be seen from the General Diary. Many police teams were searching to Golu. Golu was arrested after 6-7 days of crime and then Deva and Devideen too. Had they been seen by the witness the fact would have been told to 1.0 Immediately rather than waiting for 7-8 fays. Thus this portion of Ranshi evidence is unreliable and benefit of doubt is extended on the presence of Deva and Devideen. PW-1 has stated that he got to know from Awadh Naresh that Deva and Devideen too were present there. Awadh Naresh-the survived son statement were never recorded in the case diary. The reason being that he did not witnessed anything as stated by 1.0 in his cross examination. The defence witness records gives strength to the plea of learned defence That Devideen was on duty and was on supervision of fields. Also Ranshi has confirmed in her chief statement that Awadh Naresh kept sleeping till he was awake.” (emphasis supplied by us) 18. The consideration of evidence by the trial Judge, noticed above, is reasonable and logical. We find no good ground to discard the view taken on this aspect by the trial Judge and fully endorse it. PW-2 has also stated that the accused then started looking for her but she could effectively hide her behind a chair. She has later stated that after the accused left she came out of her house leaving behind her other brother Avadh Naresh. As per PW-2 she did not woke up Avadh Naresh as she feared he would get annoyed if she woke him up. This version of PW-2 again is not very inspiring since the age of Avadh Naresh is stated to be around twelve years and, therefore, he was much elder to PW-2. The fact that having witnessed brutal murder of her two brothers and the parents the explanation that PW-2 would not woke her elder brother only because he would get annoyed seems unconvincing. PW-2 in her cross-examination specifically stated that usually food is cooked in her house at 8.00 but on that day (date of incident) she had consumed her food at 10.00-11.00 in the night. PW-2 in her cross-examination specifically stated that usually food is cooked in her house at 8.00 but on that day (date of incident) she had consumed her food at 10.00-11.00 in the night. PW-2 nowhere stated that she had gone to the house of PW-3; had her food there or had gone to sleep in the house of PW-3, which goes contrary to the version of PW-3. 19. We have perused the statement of PW-2 recorded under Section 161 Cr.P.C. in which she has stated that when she came to the house of PW-3 she informed her that she is frightened and that she requested her to allow her to sleep and thereafter she had gone to sleep. This statement of PW-2 under Section 161 Cr.P.C. supports the plea that in fact PW-2 had gone to sleep in the house of PW-3. Whether this had occurred after she had consumed her food in the house of PW-3 or it occurred early in the morning, as is being stated by PW-2, is not very clear. What is, however, clear is that PW-2 had gone to sleep in the house of PW-3. This also raises a doubt about the presence of PW-2 at the place of occurrence. At this juncture, it would be relevant to note that though witnesses have been cross-examined extensively but no evidence has surfaced on record which may even indicate slightest of enmity or existence of motive for the accused to eliminate the entire family of Mahadev. The limited motive referred to in the judgment of trial court is the newspaper report which has rightly been disbelieved since there was no basis or evidence in that regard. The evidence, however, does indicate that relations between Mahadev and his brother Raghunandan were strained. 20. Learned counsel for the informant as well as learned A.G.A. have placed heavy reliance upon a judgment of Supreme Court in State of Madhya Pradesh vs. Ramesh and Anr (2011) 4 SCC 786 wherein the Supreme Court has observed as under in para 13:- “Part of the statement of a child witness, even if tutored, can be relied upon, if the tutored part can be separated from the untutored part, in case such remaining untutored part inspires confidence. In such an eventuality the untutored part can be believed or at least taken into consideration for the purpose of corroboration as in the case of a hostile witness. (Vide Gagan Kanojia v. State of Punjab.)” 21. It is urged by learned A.G.A. that the part of testimony of PW-2 attributing role to Smt. Deva and Sri Devi Deen @ Bhawani Deen Yadav ought to be segregated and the remaining part in which she has implicated the accused ought to be accepted. 22. The proposition of law as is noticed in para 13 is well settled. The testimony of a child witness has to be carefully scrutinized as the possibility of her being tutored always exists. It is, however, settled that if a part of such testimony is eliminated on the ground of it being tutored yet the remaining part can be accepted if it otherwise inspires confidence. We have examined the testimony of PW-2 and even if we eliminate the part of her testimony attributing role to Smt. Deva and Sri Devi Deen @ Bhawani Deen Yadav yet the remaining part of her testimony implicating the accused does not appear to be very inspiring. The reasons in that regard are apparent. First and foremost, there is a doubt as to whether PW-2 had actually slept in her house or she had slept in the house of PW-3. The fact that PW-2 had woken up at the house of PW-3 in the morning is admitted. At what point of time she came to the house of PW-3 is not very clear. PW-3, however, is specific in stating that PW-2 had her meals in her house and she had gone to sleep in her house. The version of PW-3 that she later returned with deceased Chunni is clearly an improvement in the testimony of PW-3. It is then to be noticed that the version of PW-2 that though she was seen by the accused yet she could hide herself behind a chair is also not very inspiring. Her version of having seen the incident by peeping through the hole in the wall has also been disbelieved. The fact that all four members of the family had been done to death does indicate that the offender actually wanted to eliminate the entire family. Her version of having seen the incident by peeping through the hole in the wall has also been disbelieved. The fact that all four members of the family had been done to death does indicate that the offender actually wanted to eliminate the entire family. If that be so the possibility of PW-2 having escaped from the spot even after the murderer saw her seems unlikely. It is also admitted on record that the other brother Avadh Naresh was neither harmed nor he was ever examined or produced by the prosecution which also creates a doubt on the prosecution case. When the evidence is analysed in light of the fact that there existed absolutely no motive for the accused to commit the offence, we are not persuaded to rely upon the testimony of PW-2 in order to implicate the accused appellant. We do not find the testimony of PW-2 to be so reliable, despite part of her testimony having been tutored, so as to base our conclusion entirely upon her deposition. 23. The other evidence produced by the prosecution is with regard to blood stained soil having been recovered from the house of the accused. This part of the testimony cannot be accepted for two reasons. Firstly, the recovery of soil vide Ex.Ka.7 is not proved as none of the witness of such recovery namely Munni Lal and Om Prakash have been produced. We have also examined the testimony of the Investigating Officer i.e. PW-5 in which there is no specific reference to such recovery. Our attention has also been invited to page 82 of the paper book in which the IO has categorically stated that the house of the accused was not searched on the date of incident. If the accused’s house was not searched the version that soil was collected from his house becomes doubtful. The evidence on the aspect of recovery of soil, therefore, is found unreliable. So far as the recovery of axe is concerned the prosecution has produced Ex.Ka.10 as being the memo of recovery of axe. The recovery is witnessed by Chotel Lal and Munni Lal who again has not been produced. The recovery merely states that the axe had been hidden by the accused who had given it to accused Smt. Deva and Sri Devi Deen @ Bhawani Deen Yadav. The recovery is witnessed by Chotel Lal and Munni Lal who again has not been produced. The recovery merely states that the axe had been hidden by the accused who had given it to accused Smt. Deva and Sri Devi Deen @ Bhawani Deen Yadav. There is absolutely no prosecution evidence brought on record to testify that the recovery of axe was distinctly made on the basis of such information furnished by the accused. In the absence of any such information having been proved the recovery of axe cannot be read against the accused. Law with regard to recovery under Section 27 of Indian Evidence Act has been a subject matter of consideration in a series of judgment wherein the Supreme Court has held, in Boby vs. State of Kerala 2023 SCC OnLine SC 50, as under:- “27. As early as 1946, the Privy Council had considered the provisions of Section 27 of the Evidence Act in the case of Pulukuri Kotayya v. King-Emperor. It will be relevant to refer to the following observations of the Privy Council in the said case: “The second question, which involves the construction of s. 27 of the Indian Evidence Act, will now be considered. That section and the two preceding sections, with which it must be read, are in these terms. [His Lordship read ss. 25, 26 and 27 of the Evidence Act and continued : ] Section 27, which is not artistically worded, provides an exception to the prohibition imposed by the preceding section, and enables certain statements made by a person in police custody to be proved. The condition necessary to bring the section into operation is that the discovery of a fact in consequence of information received from a person accused of any offence in the custody of a police officer must be deposed to, and there upon so much of the information as relates distinctly to the fact thereby discovered may be proved. The section seems to be based on the view that if a fact is actually discovered in consequence of information given, some guarantee is afforded thereby that the information was true, and accordingly can be safely allowed to be given in evidence; but clearly the extent of the information admissible must depend on the exact nature of the fact discovered to which such information is required to relate. Normally the section is brought into operation when a person in police custody produces from some place of concealment some object, such as a dead body, a weapon or ornaments, said to be connected with the crime of which the informant is accused. Mr. Megaw for the Crown, has argued that in such a case the “fact discovered” is the physical object produced, and that any information which relates distinctly to that object can be proved. On this view information given by a person that the body produced is that of a person murdered by him, that the weapon produced is the one used by him in the commission of a murder, or that the ornaments produced were stolen in a dacoity, would all be admissible. If this be the effect of s. 27, little substance would remain in the ban imposed by the two preceding sections on confessions made to the police, or by persons in police custody. That ban was presumably inspired by the fear of the legislature that a person under police influence might be induced to confess by the exercise of undue pressure. But if all that is required to lift the ban be the inclusion in the confession of information relating to an object subsequently produced, it seems reasonable to suppose that the persuasive powers of the police will prove equal to the occasion, and that in practice the ban will lose its effect. On normal principles of construction their Lordships think that the proviso to s. 26, added by s. 27, should not be held to nullify the substance of the section. In their Lordships' view it is fallacious to treat the “fact discovered” within the section as equivalent to the object produced; the fact discovered embraces the place from which the object is produced and the knowledge of the accused as to this, and the information given must relate distinctly to this fact. Information as to past user, or the past history, of the object produced is not related to its discovery in the setting in which it is discovered. Information supplied by a person in custody that “I will produce a knife concealed in the roof of my house” does not lead to the discovery of a knife; knives were discovered many years ago. Information supplied by a person in custody that “I will produce a knife concealed in the roof of my house” does not lead to the discovery of a knife; knives were discovered many years ago. It leads to the discovery of the fact that a knife is concealed in the house of the informant to his knowledge, and if the knife is proved to have been used in the commission of the offence, the fact discovered is very relevant. But if to the statement the words be added “with which I stabbed A.”, these words are inadmissible since they do not relate to the discovery of the knife in the house of the informant.” [Emphasis supplied] 28. It could thus be seen that Section 27 of the Evidence Act requires that the fact discovered embraces the place from which the object is produced and the knowledge of the accused as to this, and the information given must relate distinctly to the said fact. The information as to past user, or the past history, of the object produced is not related to its discovery. The said view has been consistently followed by this Court in a catena of cases. 29. This Court, in the case of Chandran v. The State of Tamil Nadu5, had an occasion to consider the evidence of recovery of incriminating articles in the absence of record of the statement of accused No. 1. In the said case also, no statement of accused No. 1 was recorded under Section 27 of the Evidence Act leading to the recovery of jewels. The Court found that the Sessions Judge as well as the High Court had erred in holding that the jewels were recovered at the instance of accused No. 1 therein in pursuance to the confessional statement (Ex. P-27) recorded before PW-34 therein. It will be relevant to refer to the following observations of this Court in the said case: “36. ……Thus the fact remains that no confessional statement of A-1 causing the recovery of these jewels was proved under Section 27, Evidence Act…..” 30. It is thus clear that this Court refused to rely on the recovery of jewels since no confessional statement of the accused was proved under Section 27 of the Evidence Act. 31. ……Thus the fact remains that no confessional statement of A-1 causing the recovery of these jewels was proved under Section 27, Evidence Act…..” 30. It is thus clear that this Court refused to rely on the recovery of jewels since no confessional statement of the accused was proved under Section 27 of the Evidence Act. 31. It will also be relevant to refer to the following observations of this Court in the case of State of Karnataka v. David Rozario: “5. ……This information which is otherwise admissible becomes inadmissible under Section 27 if the information did not come from a person in the custody of a police officer or did come from a person not in the custody of a police officer. The statement which is admissible under Section 27 is the one which is the information leading to discovery. Thus, what is admissible being the information, the same has to be proved and not the opinion formed on it by the police officer. In other words, the exact information given by the accused while in custody which led to recovery of the articles has to be proved. It is, therefore, necessary for the benefit of both the accused and the prosecution that information given should be recorded and proved and if not so recorded, the exact information must be adduced through evidence. The basic idea embedded in Section 27 of the Evidence Act is the doctrine of confirmation by subsequent events. The doctrine is founded on the principle that if any fact is discovered as a search made on the strength of any information obtained from a prisoner, such a discovery is a guarantee that the information supplied by the prisoner is true. The information might be confessional or non-inculpatory in nature but if it results in discovery of a fact, it becomes a reliable information. It is now well settled that recovery of an object is not discovery of a fact envisaged in the section. Decision of the Privy Council in Pulukuri Kottaya v. Emperor [ AIR 1947 PC 67 : 48 Cri LJ 533 : (1946-47) 74 IA 65] is the most-quoted authority for supporting the interpretation that the “fact discovered” envisaged in the section embraces the place from which the object was produced, the knowledge of the accused as to it, but the information given must relate distinctly to that effect. (See State of Maharashtra v. Damu [ (2000) 6 SCC 269 : 2000 SCC (Cri) 1088 : 2000 Cri LJ 2301].…..” [Emphasis supplied] 32. A three-Judges Bench of this Court recently in the case of Subramanya v. State of Karnataka7, has observed thus: “82. Keeping in mind the aforesaid evidence, we proceed to consider whether the prosecution has been able to prove and establish the discoveries in accordance with law. Section 27 of the Evidence Act reads thus: “27. How much of information received from accused may be proved.— Provided that, when any fact is deposed to as discovered in consequence of information received from a person accused of any offence, in the custody of a police officer, so much of such information, whether it amounts to a confession or not, as relates distinctly to the fact thereby discovered, may be proved.” 83. The first and the basic infirmity in the evidence of all the aforesaid prosecution witnesses is that none of them have deposed the exact statement said to have been made by the appellant herein which ultimately led to the discovery of a fact relevant under Section 27 of the Evidence Act. 84. If, it is say of the investigating officer that the accused appellant while in custody on his own free will and volition made a statement that he would lead to the place where he had hidden the weapon of offence, the site of burial of the dead body, clothes etc., then the first thing that the investigating officer should have done was to call for two independent witnesses at the police station itself. Once the two independent witnesses would arrive at the police station thereafter in their presence the accused should be asked to make an appropriate statement as he may desire in regard to pointing out the place where he is said to have hidden the weapon of offence etc. When the accused while in custody makes such statement before the two independent witnesses (panch-witnesses) the exact statement or rather the exact words uttered by the accused should be incorporated in the first part of the panchnama that the investigating officer may draw in accordance with law. When the accused while in custody makes such statement before the two independent witnesses (panch-witnesses) the exact statement or rather the exact words uttered by the accused should be incorporated in the first part of the panchnama that the investigating officer may draw in accordance with law. This first part of the panchnama for the purpose of Section 27 of the Evidence Act is always drawn at the police station in the presence of the independent witnesses so as to lend credence that a particular statement was made by the accused expressing his willingness on his own free will and volition to point out the place where the weapon of offence or any other article used in the commission of the offence had been hidden. Once the first part of the panchnama is completed thereafter the police party along with the accused and the two independent witnesses (panch-witnesses) would proceed to the particular place as may be led by the accused. If from that particular place anything like the weapon of offence or blood stained clothes or any other article is discovered then that part of the entire process would form the second part of the panchnama. This is how the law expects the investigating officer to draw the discovery panchnama as contemplated under Section 27 of the Evidence Act. If we read the entire oral evidence of the investigating officer then it is clear that the same is deficient in all the aforesaid relevant aspects of the matter.” 33. This Court has elaborately considered as to how the law expects the IO to draw the discovery panchnama as contemplated under Section 27 of the Evidence Act. In the present case, leave aside the recovery panchnama being in accordance with the aforesaid requirement, there is no statement of Boby (accused No. 3/appellant herein) recorded under Section 27 of the Evidence Act. We are, therefore, of the considered view that the prosecution has failed to prove the circumstance that the dead body of the deceased was recovered at the instance of Boby (accused No. 3/appellant herein).” (emphasis supplied) 24. We are, therefore, of the considered view that the prosecution has failed to prove the circumstance that the dead body of the deceased was recovered at the instance of Boby (accused No. 3/appellant herein).” (emphasis supplied) 24. So far as other recovery made by the prosecution vide Ex.Ka.1, Ex.Ka.3A, Ex.Ka.4A, Ex.Ka.5A, Ex.Ka.2A, Ex.Ka.6, Ex.Ka.7, Ex.Ka.8, Ex.Ka.9, Ex.Ka.10, Ex.Ka.11, Ex.Ka.12, Ex.Ka.17 are concerned, none of these recoveries have been proved since the witnesses of such recovery have neither testified to such recovery nor is it shown that any such recovery was made based upon the information furnished by the accused. The recovery of incriminating material, as alleged by the prosecution, is thus disbelieved. 25. So far as the recovery of Aadhar card from the spot is concerned, we find it rather amusing that an accused who would go to commit such a heinous crime would carry his aadhar card or would drop it at the place of occurrence so that the police found no difficulty in identifying him. This part of the prosecution case is thus most amusing and cannot be believed. Even otherwise witnesses of such recovery have not been produced. The possibility of such aadhar card having been placed later cannot be ruled out. 26. When we proceed to ultimately evaluate the prosecution evidence we cannot lose sight of the fact that the incident was reported to the Investigating Officer admittedly at around 5.00-6.00 in the morning. The IO categorically admits that he rushed to the spot within twenty minutes. IO has moreover stated that the incident was reported on helpline no.100. However there is no evidence produced by the prosecution on the aspect as to when such call was received; who had made this call and when the IO came on the spot. The GD of the Police Station has not been produced to show receiving of such information by the IO or his visit to the place of occurrence. Records also reveal that the trial court on 20.11.2019 specifically directed the IO to appear on the next day alongwith GD yet such GD has not been produced. We also found no reference of any steps taken by the prosecution between 6.20 AM when the Investigating Officer arrived at the place of occurrence till the information officially was given to the Police Station on 10.15 AM. What happened between 6.20 to 10.15 is not known. We also found no reference of any steps taken by the prosecution between 6.20 AM when the Investigating Officer arrived at the place of occurrence till the information officially was given to the Police Station on 10.15 AM. What happened between 6.20 to 10.15 is not known. It is admitted to the prosecution that the IO arrived at the place of occurrence by 6.20 AM. The manner in which the written report has been got scribed by Munni Lal without producing him clearly lends support to the defence version that the IO had arrived several hours before the information was given to the police. The possibility of deliberation and consultation having preceded the lodging of police report is a distinct possibility. We are amused at the manner in which the investigation has proceeded and material facts have been withheld. In the facts of the case, the failure on part of the prosecution to explain the genesis of the incident coupled with the strong possibility of deliberation and consultation having preceded the making of written report, followed by complete absence of motive on part of the accused persuade us to disbelieve the testimony of child witness in the facts and circumstances of the present case. Though the incident is gruesome in which four persons have lost their lives but that in itself would not persuade us to punish the accused against whom evidence is lacking and is not reliable. 27. In view of the deliberations held above, we do not subscribe to the view taken by the trial court that the prosecution has succeeded in establishing its case beyond reasonable doubt against the accused appellant. The accused appellant is clearly entitled to benefit of doubt. Reference made under Section 366 Cr.P.C. is, therefore, answered by holding that the accused appellant is not found guilty and consequently, the death penalty awarded to him stands reversed. The criminal appeal filed by the accused appellant to that extent succeeds and is allowed. 28. We find absolutely no good ground to interfere with the view taken by the trial court for acquitting the accused Smt. Deva and Sri Devi Deen @ Bhawani Deen Yadav as the findings returned by the court below to discard the testimony of PW-2 is found to be based upon correct appraisal of the evidence on record. 28. We find absolutely no good ground to interfere with the view taken by the trial court for acquitting the accused Smt. Deva and Sri Devi Deen @ Bhawani Deen Yadav as the findings returned by the court below to discard the testimony of PW-2 is found to be based upon correct appraisal of the evidence on record. Accordingly, the Criminal Appeal u/s 372 Cr.P.C. No.21 of 2021 filed by informant Raghunandan is rejected. 29. At the end, we record our appreciation for the able assistance rendered to the Court by Sri Gajendra Pratap, learned Senior counsel, who has acted pro bono as Amicus Curiae and Smt. Abhilasha Singh who has assisted learned Senior counsel in the present case and highlighted evidence, meticulously, for us to come to our conclusion. Smt. Abhilasha Singh will be entitled to her fees quantified at Rs.15,000/- from the High Court Legal Services Authority.