Gurmit Singh vs State of U.P.

U. P. Singh, J.—This appeal has been placed before me under Section 392, Cr. P.C. on a difference of opinion between the two Hon''ble Judges of this Court, Hon''ble Justice Giridhar Malviya and Hon''ble Justice Surya Prasad. Hon''ble Justice Giridhar Malviya has dismissed the appeal preferred by the sole appellant Gurmit Singh, whereas Hon''ble Justice Surya Prasad has allowed the appeal and set aside the judgment and order of the learned Additional Sessions Judge, Shahjahanapur arid, accordingly, reference No. 6 of 1992 regarding confirmation of death sentence awarded to Gurmit Singh has been rejected.

This relates to an incident which took place at 11 p.m. in the night of 17th August, 1986 at the residence of the family of the appellant Gurmit Singh known as ''Jhala''. This is located in the ''tarai'' region of this State, where persons belonging to the Sikh community, in particular, cultivated the land by clearing the large chunk of jungles. Generally, one family got one such accommodation for the entire family. In this incident, thirteen persons of the family were killed, who were sleeping and were the real and near relatives. Even the infants, innocent children aged about four years as also the ladies and the old men were killed.

Originally, three persons were put on trial, Gurmit Singh, Lakkha Singh and one Jawahar for the offences punishable under Section 302/307/34, I.P.C. by the police of Sehramau (north) police station district Shahjahanpur During trial, accused Lakkha Singh died and so the trial abated against him. Accused Jawahar (the servant of Gurmit Singh) was acquitted of the charges under Section 302 read with Section 34 I.P.C. and Section 307 read with Section 34, I.P.C.

Appellant Gurmit Singh was found guilty and convicted under Section 302, I.P.C. for committing the murder of Man Singh, Karam Singh, Surjit Singh, Ranjit Singh and Nazir Singh. He was further convicted under Section 302/34, I.P.C. for committing the murder ol''Richpal Singh, Pamma, Km. Kanti, Km. Pammi, Km. Akki, Rajvendar Kaur, Smt. Sita and Sml. Bhajan Kaur. He was also convicted under Section 307, I.P.C. for attempting to commit murder and causing injuries to Balvendar Singh as also under Section 307/34, I.P.C. in attempting to commit murder and causing injuries to Km. Biro. He was sentenced to death by the Additional Sessions Judge, Shahjahanpur under Section 302 read with Section 34, I.P.C. He was further sentenced to undergo ten years rigorous imprisonment under Section 307, I.P.C. and under Section 302 read with Section 34, I.P.C. The learned Additional Sessions Judge referred the case to the High Court for confirmation of the death sentence.

Against the said judgment of the learned Additional Sessions Judge, Shahjahanpur, in Sessions Trial No. 37 of 1987, one Criminal Appeal No. 1333 of 1992 was preferred by the sole appellant Gurmit Singh. However, no appeal was preferred by the State against the order of acquittal of accused Jawahar passed by the learned Additional Sessions Judge.

According to the prosecution, Nazir Singh, the head of the family had four sons named Karam Singh, Man Singh. Balvendar Singh and Gurmit Singh. He had set up one such ''Jhala'' in village Rampur Pipariya Police Station Sehramau (north). This ''Jhala'' had three sets of two rooms each running west to east. In the two rooms on the western side, Karam Singh lived along with his family and in the other eastern portion, Nazir Singh along with the family of his sons Man Singh and Balvendar Singh used to reside. Accused Gurmit Singh''s room was on the other side of ''Jhala''. In front of their respective rooms there was an open land. About a year prior to the incident, accused Gurmit Singh was married. After marriage, coaccused Lakkha Singh, who died during the trial, used to visit Gurmit Singh''s wife even during his absence, which was not relished by Nazir Singh, the head of the family. Consequently, Nazir Singh and his other sons ridiculed Lakkha Singh and told accused Gurmit Singh that Lakkha Singh was not a man of good character. They asked Gurmit Singh not to allow Lakkha Singh to live in the house. This was not liked by Gurmit Singh and his companion Lakkha Singh and they became angry with Nazir Singh and his other sons. It has further come in the evidence that Gurmit Singh (the appellant) Lakkha Singh and Jawahar (servant of Gurmit Singh) abused Nazir Singh and his family members.

In the night of the incident intervening 17/18th August, 1986 Nazir Singh was sleeping at the tubewell located at some distance from their ''Jhala'' towards south. Karam Singh, his wife Bhajan Kaur and son Paramjit (P.W 2) were sleeping on the roof of their room, Surjit Singh, Ranjit Singh and Ranjit Kaur, three children of Karam Singh, were sleeping in the room down below. In the adjoining portion the other son of Nazir Singh named Man Singh, his wife Surjit Kaur and their four children, Richpal, Akki, Kanti and Pammi were sleeping in the court yard outside their room. Their three children Pammi, Km. Biro (P. Wl) and Rajvendar were sleeping inside the room. The third son of Nazir Singh, namely, Balvendar was ako sleeping in the same courtyard. At the relevant time, his wife had gone to her father''s place. Thus, it would appear that three persons were sleeping on the roof, three children each of Karam Singh and Man Singh were sleeping inside the room and Man Singh, his wife Surjeet, Baivendar and four children of Man Singh were sleeping in the courtyard outside their room.

From the evidence of the witnesses, it appears, that on the relevant date in the night intervening 17/18th August, 1986 at about 11 p.m. Gurmit Singh (appellant), the fourth son of Nazir Singh along with his associates Lakkha Singh and servant Jawahar arrived there and Gurmit Singh and Lakkha Singh were armed with naked swords. It was alleged that accused Jawahar was throwing brickbats and asking those persons sleeping on the roof to come down, stating that they would not be spared. Accused Gurmit Singh (appellant) and Lakkha Singh assaulted and cut down the aforesaid persons who were sleeping. It was alleged that Gurmit Singh and Lakkha Singh had arrived there with a view to eliminate all the members of the family of Nazir Singh. Paramjit Singh aged about 1314 years (P.W. 2), his father and mother jumped down from the roof, they were murdered by Gurmit Singh and Lakkha Singh, and they caused injuries to Balvinder Singh aged about 2223 years (P.W 3) and Km. Biro (P.W. 1) aged about 12 years. Thereafter, they went towards the tubewell where Nazir Singh was sleeping was sleeping and they murdered him also.

The occurrence was witnessed by Km, Biro (P.W. 1) aged about 12 years who was inside the room, Parmjit Singh aged about 1314 years (P.W 2) who was on the roof and Balvendar Singh aged about 2223 years (P.W. 3) who was sleeping outside in the courtyards. Out of these three, Km, Biro (P.W. i) and Balvendar Singh (P.W 3) are the injured witnesses. The occurrence was witnessed by these witnesses in the light of the moon and a lamp (dibbi). After the incident, village people arrived on the scene of occurrence on the hue and cry and thereafter Pramijtt Singh (P.W. 2) along with the villagers inspected the whole ''Jhala'' and found that his mother, father, two brothers, his uncle Man Singh, wife of Man Singh and six children of Man Singh had been murdered by Gurniit Singh and Lakkha Singh by sword. The two injured Balvendar Singh (P.W. 3) and Km. Biro (P.W 1) were sent to Banda for the medical treatment by the neighbourers. Paramjit Singh (P.W. 2) aged about 1314 years along with one Pardhan of the village named Mittar Singh went to the Police Station Sewa mau (North) and first information report was lodged at the Police Station. The case was then registered under Sections 302 and 307, I.P.C. After registration of the case the Station House Officer as also other Police Officer rushed to the spot. On account of the gravity of the case when thirteen murders had been committed, some other Police Officers of the neighbouring Police Stations also rushed to the spot.

The then. SubInspector of Police Sardar Singh conducted the inquest on the dead body of the deceased Richapal Singh, Akki, Kanti, Pamma Singh, Sita wife of Man Singh, Km. Pammi and Km. Kajendra Kaur and prepared the inquest report after observing all the necessary formalities. The then SubInspector of Police, Dinesh Kumar conducted the inquest on the dead body of the deceased Nazir Singh, Man Singh and Karam Singh and prepared the inquest reports. The then SubInspector of Police Hari Nandan Singh conducted the inquest on the dead body of deceased Ranjit Singh, Smt. Bhajan Kaur and Surjit Singh and prepared the inquest report after observing all other formalities. The dead bodies of these thirteen persons were sent to the District Hospital, Shahjahanpur for postmortem examination. During the course of investigation accused Gurmit Singh and Lakkha Singh were arrested by the Officers of the Police Station Gola in the district of Lakhimpur Kheri. Accused Jawahar WK.S arrested by the Police of Police Station Banda. After completion of the investigation the chargesheet was submitted by the Police of Police Station Sehramau (North) against the accused persons.

Dr. K. K. Srivastava (P.W. 4) conducted the postmortem examination on the dead body of nine persons i.e., Man Singh, Km. Pammi, Kanti, Richpal Singh, Pamma, Ranjit Singh, Smt. Bhajan Kaur, Surjit Singh and Nazir Singh and according to him all these rune persons died due to several injuries caused by a sharp edged weapon such as sword which was sufficient in the ordinary course of nature, to cause death and all these nine persons died due to those injuries and due to shock and haemorrhage. In the opinion of the doctor (P.W. 4) the injuries might have been caused on 17.8.1986 at 8p.m.

Likewise, Dr. U. D. Kapoor (P.W. 5) conducted the postmortem examination on 19.8.1986 on the dead body of Akki (daughter of Man Singh), Smt. Sita (wife of Man Singh), Rajendra Kaur and Karan Singh. According to him, the injuries caused to these four persons were sufficient in the ordinary course of nature to cause death and might have been caused by sword. In his opinion, the death of these persons would have taken place at about 11 p.m. on 17.8.1986.

Dr. Habit (P.W. 6) examined Km. Biro (P.W. 1) and found the following injuries on her body:

� 1. Incised oblique wound on the both side of head 10.5 cm. � 1 cm. � bone deep 6 cm. above the root of nose.

Incised would on the dorsal aspect of left hand extending towards the finger 7.5 cm. � 1.5 cm. � bone deep 6 cm. below the wrist joint, half of the little finger is completely cut off, ring finger is also cut and handing with skin flat.�

According to the said witness these injuries might have been caused by a sharp edged weapon and at the time of examination they were about 11/2 days old. He has proved the injury report of Km. Biro (Ex. Ka. 15).

(P.W. 7) Dr. Amar Lal examined the injuries on the body of Balvendar Singh and found the following injuries on his person:

� 1. Incised wound 11 cm. �. 1.25 cm. � depth not probed on the right side face head (lower) of mandible bleeding present.

Incised wound on right side of face 10 cm. x. 1 cm. x depth not probed above injury No. 1. Bleeding present.�

According to the doctor the aforesaid injuries caused to Balvendar Singh were not of such a nature as to cause death at once. However, in case of excessive bleeding, death could be caused. He has proved the injury report of Balvendar Singh, which is Ex. Ka16. He advised for xray.

Dr. B.P. Sharma, (P.W. 17) has proved the xray reports and xray plate of Km. Biro and Balvendar Singh. Two xray of Km. Biro were conducted in respect of her left hand and skull.

Dr. Sharma has also proved xray plates and the injury report of Balvendar Singh. He has stated that Kin. Biro was admitted in the hospital.

The prosecution examined three eye witnesses of occurrence, i.e. Km. Biro (P.W. 1), Paramjit Singh (P.W 2) and Balvinder Singh (P.W. 3). The prosecution further examined the doctors and the police witnesses, i.e. Dr. K. K. Srivastava (P.W. 4), Dr. U.D. Kapoor (P.W. 5), Dr. Habib Ahmad (RW. 6), Dr. Amar Lal (P.W. 7) and Shamsul Hasan (P.W. 8).

During the trial accused Lakkha Singh died, so the case against him stood abated. The statement under Section 313, Cr. P.C. of accused Gurmit Singh and Jawahar was recorded. No evidence in defence was offered by anyone of them.

The three eye witnesses of the occurrence are Km. Biro (P.W.I), Pramjit Singh (P.W. 2) and Balvinder Singh (P.W. 3). Out of these three, Km. Biro and Balvinder Singh are injured witnesses. The prosecution further examined two doctors to prove the postmortem reports. Three doctors were produced to prove the injury reports and the xray plates. Three SubInspectors were produced to prove the inquest reports, who had prepared the inquest reports etc. The prosecution further examined the other Police Officials to prove the entire investigation conducted by them.

P.W. 9 SubInspector Hari Nandan Singh had stated in the crossexamination that on 18.8.1986 he got information about this incident at about 8 a.m. and received direction from Circle Officer, Poyawan on wireless (P.W. 9), was crossexamined at length but he specifically stated that at the time of preparing inquest report he had a copy of the first information report and he had mentioned the distance between the police station and the place of occurrence in Kms. On receiving the information on wireless from Circle Officer, Powayan, he immediately proceeded and reached the place of occurrence and prepared the inquest report of deceased Ranjit Singh, Smt. Bhajan Kaur and Surjeet Singh. He has proved the inquest report, challan, photolash of the dead body and the letter sent to the Chief Medical Officer etc. which are Exts. Ka18, Ka24, Ka21, Ka27, and Ka28. He also proved the inquest report of Smt. Bhajan Kaur (Ext. Ka19), Photolash (Ext. Ka22), and Challan (Ext. Ka25) as also the letter to the Chief Medical Officer (Ext. Ka29) and sample of the seal (Ext. Ka30). He further proved the inquest report, photolash and challan of the dead body and the letter to Chief Medical Officer and sample of the seal of deceased Surjeet Singh (Ext. Ka20, Ka23, Ka26, Ka31 and Ka32).

SubInspector Dinesh Kumar Singh (P.W. 10) had been posted in Police Station, Banda at the time of the incident. He prepared the inquest report, challan and photolash etc. in respect of the deceased Nazir Singh, Man Singh and Karam Singh. He proved the inquest reports Ex. Ka39, Ka40, Ka41 and Ka42 in respect of deceased Nazir Singh. He further proved the inquest report etc. in respect of deceased Man Singh, (Ext. Ka43, Ka44, Ka45, Ka 46 and Ka47) and likewise proved the inquest report of the deceased Karam Singh which are Exts. Ka48, Ka49, Ka50 and Ka51.

In his crossexamination he has stated that he got information about this incident at about 7.30 a.m. in Police Station, Banda on wireless. He immediately rushed to the spot with the Station House Officer Sri Umed Singh, S.I., K.C. Tyagi and Constables. He also stated that when he was preparing the inquest report he had a copy of the first information report with him but since he used to mention the distance in kms., he mentioned the distance only in kms.

S.I. Sardar Singh, (P.W. 11) prepared the inquest report and other documents in respect of deceased Richapal Singh, Km. Akki, Km. Kanti, Pamma S/o Man Singh, Smt. Sita w/o Man Singh, Km, Pammi d/o Man Singh and Km. Rajvinder Kaur d/o Man Singh. He proved the inquest report and other documents (Exts. Ka57 to 61) in respect of deceased Richpal Singh. He proved the inquest report and other documents in respect of the deceased Km. Akki (Exts. Ka62 to 66), in respect of deceased Km. Kanti (Exts. 67 to 71), in respect of deceased Pamma s/o Man Singh (Ext. Ka72 to 76), in respect of Smt. Sita w/o Man Singh (Ext. Ka77 to 81), in respect of Km. Pammi d/o Man Singh (Exts. Ka82 to 86) and in respect of deceased Km. Rajvinder Kaur d/o Man Singh (Exts. Ka87 to 91).

According to him he was on duty in village Goda within the circle of P.S. Sejramau (North) on account of the festival of Iduzzuha. While he was on duty in village Goda he got news that his station House Officer has called him who was in village Rampur Pipariya Hamlet. He atonce proceeded to the place of occurrence accompanied by the constables. In crossexamination he has stated that his Station House Officer gave him the copy of the first information report etc. He has refuted the suggestion of the defence that while preparing the inquest report he had no copy of the first information report. He further denied the suggestion that he had prepared the inquest report at the police station. He has further stated that at the time of preparing the inquest report he knew the fact that in the first information report the distance had been given in miles i.e. 12 miles but he wrote this distance in kilo meters.

(P.W. 12) Constable Ram Kishan Singh was posted in police station Sehramau (north) on 18.8.1986. He has stated that after preparation of the inquest reports etc. of the deceased persons S.I. Sardar Singh (P.W. 11) had handed over the dead bodies of these persons to him who was accompanied by Constable Biveshwar Singh (P.W. 12) had further stated that the seal of the bodies remained intact and no body was allowed to touch the body. After the postmortem the result of the postmortem and other relevant papers were handed over by him to Biveshwar Singh on 19.8.1986 for depositing the same in Police Station Sehramau (north). He has stated that till the evening of 19.8.1986 he remained there till the relevant documents were handed over by the doctors after conducting the postmortem. Likewise, (P.W. 13) Constable Kalloo Singh who had been posted in Police Station Sehramau (north) on 18.8.1986 had slated about the handing over of the dead bodies of Ranjit Singh, Smt. Bhajan Kaur, Surjit Singh for conducting the postmortem and handing over all the relevant documents for depositing the same in the police station.

On 17.8.1986 Constable Shamshul Hasan (P.W. 8) was the Constable Cleark at Police Station Sehramau (north). He had written the first information report (Ext. Ka1), on the basis of the oral report lodged by Paramjit Singh (P.W. 2). After preparation of the first information report at 6.30 a.m. he mentioned about the registration of the case in report No. 7 and proved the general diary in respect of registration of case (Ext. Ka. 17). In his crossexamination he denied the suggestion that the first information report was written under the influence of village Pradhan Mittar Singh. He frankly stated that the village Pradhan was along with Paramjit Singh (P.W. 2) when he reached the Police Station for lodging the report. The Investigating Officer of this case was (P.W. 18) S.I. Ram Magan Pandey and at the time of occurrence he was posted as station House Officer in Police Station, Sehramau (north). He has stated that the first information report was lodged in the police station in his presence and he started investigation of the case. After preparing copy of the chik report (Ext. Ka1) and copy of the report (Ext. Ka. 17) he atonce proceeded to the place of occurrence along with the informant Paramjit Singh (P.W. 2). He recorded the statement of the informant Paramjit Singh (P.W. 2) on the spot. Considering the seriousness of the case, the informed his superior Officers and other police stations adjacent to his police station before proceeding to the place of occurrence. As soon as he arrived at the place of occurrence, the Circle Officer and Station House Officer Powayan, the Station House Officer of Police Station, Banda, Station House Officer Khatar reached there with the force and with the relevant register if inquest report. P.W. 18, the Investigating Officer prepared the siteplan with the and of the informant Parmjit Singh (P.W 2) and other witnesses. The siteplan Ext. Ka106 of the place of occurrence was proved by P.W. 18. He also prepared the memo of the lamp which was one of the sources of light at the time of the incident. The memo of the lam (Ext. Ka.107) was proved by (P.W. 18).

P.W. 18 further recorded the statement of witnesses including the village Pradhan, Km. Ranjit Kaur and the statement of other witnesses of the memo of lamp. He also recorded the statement of Deputy village Pradhan Jaswant Singh S.I. D. K. Singh has prepared the inquest report. His statement was also recorded by P.W. 18. He also prepared the memo of blood stained cot and the clothes etc. (Exts. Ka53 to; 56). He recorded the statements of other SubInspectors who had prepared the inquest reports and he completed all other formalities in respect of the memo of the dead bodies, the blood stained clothes earth etc, and the other formalities regarding conduction of the postmortem etc.

While the Investigating Officer, Ram Magan Pandey (P.W. 18) was in search of the accused persons he got information on 19.8.1986 that accused Jawahar was arrested by the police of Police Station Banda and was sent to jail. While he was proceeding to Banda and reached the crossing of Banda along with the police party he found that the police of Banda was carrying accused Jawahar for remand. He recorded the statement of accused Jawahar at Banda crossing. He reached police station banda. He got injury reports of Km. Biro (P.W.I) and Balvinder Singh (P.W. 3) but since they had been sent to Shahjahanpur for treatment because of the seriousness of their injuries, they were not available.

On 20.8.1986 he remained busy in search of accused Gurmit Singh and Lakkha Singh. On 21.8.1986 the postmortem reports of all the three deceased persons were received which was entered in the case diary. Between 22.8.1986 to 24.8.1986 he had gone to Punjab in search of accused Gurmit Singh and Lakkha Singh since their relatives lived in Punjab but they could not be searched out. In the meantime, SubInspector Shyam Singh attached the movable property of accused Gurmit Singh, the necessary entires were made in the casediary. Thus, he continued to be in search of both the accused persons since 23.8.1986 to 4.9.1986. On 5.9.1986 he recorded the statement of Km. Biro (P.W. 1) in the District Hospital, Shahjahanpur. He also recorded the statement of both the witnesses of the memo (Ext. Ka108) relating to the blood stained clothes taken from the custody of Km, Biro. He also recorded the statement of Smt. Baljeet Kaur. The statement of injured Balvinder Singh (P.W. 3) could not be recorded because of serious injuries received by him in his jaw and he was not in a position to speak.

In the process of his search for the two accused persons, while he was going in his Jeep on 16.10.1986 and while he was passing through Khutar to Gola then at the Khutar road outpost he met S.I. R.K. Shukla who informed him that both the accused persons Gurmit Singh and Lakkha Singh had been arrested by the police of P.S. Gola. He then atonce proceeded to Gola and found them arrested there who had been kept in the police lockup at P.S.Gola district Lakhimpur Khiri. He then recorded the statement of both the accused persons as also the statement of station House Officer Police Station Gola. According to the Investigating Officer (P.W. 18) both the accused Gurmit Singh and Lakkha Singh had confessed this crime and further stated that the weapon, namely, swords were used in the crime and they may pointout the place from where it may be recovered.

On 17.10.1986 the police of police station Gola produced both the accused persons before the Chief Judicial Magistrate, Lakhimpur Khiri and they were taken on police remand for recovery of swords. The order was passed on 17.10.1986 by the Chief Judicial Magistrate, Lakhimpur Khiri (Ext. Ka109) and the same was proved by P.W. 18. The Chief Judicial Magistrate, Lakhimpur Khiri ordered that confession of both the accused persons may be recorded by Chief Judicial Magistrate, Shahjahanpur. This order was proved by P.W. 18 (Ext. Ka116). On 17.10.1986 at about 7.25 p.m. he returned with both the accused persons and at about 21.57 p.m. he reached police station Powayan along with the police force. On account of the night it was not possible for the accused persons to lead to the recovery and, therefore, P.W. 18 stayed at Police Stateion Powayan and the necessary entries were made in the diary. On 18.10.1986 at about 6.30 a.m. the Investigating Officer (P.W, 18) proceeded with both the accused persons for recovery of the weapons used in the crime. He proceeded in the Jeep along with the police force at about 7.30 a.m. with the two public witnesses Hiralal and Ishwar Chand. Both the accused persons confessed that they will handover their swords which they had concealed. At about 8.05 a.m. both the accused persons searched it out from the deep water accumulated towards northern corner of the Banda village. These swords were sealed and the memo (Ext. Ka103) was prepared. The statement of the memo witnesses, namely, Hiralal and Ishwar Chand was recorded. The siteplan of the place from where both the swords were recovered on being pointed out by both the accused persons and a siteplan (Ext. Ka115) was prepared. Since the accused had confessed about the crime in the police station Gola on 16.10.1986, the Investigating officer recorded their statement.

Another significant fact was disclosed by accused Gurmit Singh, who stated that in order to change the figure they got into the hair cutting shop known as ''Diomand Hair Dressers'' situated in Kairooganj, Shahjahanpur and got their hair shaved. Accordingly, the Investigating Officer along with the force and the two accused persons reached Shahjahanpur but the said hair cutting shop named as ''Diamond Hair Dressers'' was found closed. The Investigating Officer (P.W. 18) had some how known the address of the owner of the said shop of the hair cutting saloon and went to the house of the barber but then he was not present at his residence. He then returned to the Police Station Powayan, where both the accused persons were put into lockup and the words were placed into the Malkhana. On 19.10.1986 they were again taken to the ''Diamond Hair Dressers'' in custody and reached at 10.55 a.m. when the shop was found to be opened and Riyazudin and Mohammad Islam were present there. After identifying Gurmit Singh they stated that he had requested him to clean shave his hair. On 19.10.1986 he produced both the accused persons before the remand Magistrate when accused Gurmit Singh and Lakkha Singh were sent to Jail after obtaining 14 days remand. After completing the investigation the chargesheet was submitted against all the three accused persons (Ext. Ka119) on 27.1.1986.

In crossexamination P.W. 18 has stated that at the time of occurrence the said area was not affected by territorist, therefore, the suggestion given by the defence that the occurrence might have been committed by the terrorists was completely ruled out by the Investigating Officer (P.W. 18).

The learned Counsel appearing for the appellant strenuously urged that the first information report was antedated and was lodged after due deliberation. It cannot be said to be a genuine document and cannot be lodged soon after the ghastly incident. It was sent by post and was received by the Chief Judicial Magistrate at 5 p.m. on 23.8.1986, the distance being 12 miles. It was contended that the distance between the police station and the place of occurrence was as 20 kms. In the inquest report, whereas, in the first information report the distance was shown as 12 miles. It was further contended that there was no mention of weapon in the inquest report. I find no fore in these contentions and they are rejected. In the present case 13 murders were committed and so many SubInspectors, even from the neighboring police stations, had been called to prepare the inquest reports. It is true that the distance in the inquest report was mentioned in kilometers (20 kms.) where as in the first information report it was mentioned as 12 miles. But it makes no difference and if one calculates then 12 miles will be equal to nearly 20 kms. and that however will not stand against the credibility of the first information report. Further, P. Ws. 9 and 10, S. I. Hari Nandan Singh and Dinesh Kumar Singh have stated in their evidence now a days distance is being written in kilometers. They have further stated that they had with them a copy of the first information report when the inquest reports were prepared by them. There is nothing on record to the contrary and all the official witnesses who prepared the inquest reports have categorically stated that they had with them a copy of the first information report at the time of preparing the inquest reports, therefore, the suggestion that the first information report was prepared after due deliberation has to be rejected. The inquest reports, in the present case were prepared soon after the occurrence, even by the police Officers of the neighbouring police station since it related to the murder of 13 persons and they had a copy of the first information report with them. Thus, there was no possibility of any deliberations and false implication at the instance of the village Pradhan against whom enmity was suggested. The witnesses have frankly stated that the village Pradhan was present along with the informant at the police station. The frank statement of PW 2 itself shows that the mere presence of the village Pradhan would not create any doubt over the truth of the statement of the first informant, who had himself seen the entire occurrence, unless his ocular evidence is disbelieved on material particulars of the case. He did not conceal the fact about the presence of the village Pradhan. In a case of such a grave nature where 13 persons of the family were murdered in one sequence, one has to imagine the state of mind amongst the villagers or the neighbours. The presence of village pradhan taking him to the police station was not an unnatural event. Further, minor details in the inquest reports for challan of the dead body, such as crime number or nonmention of the weapons in the ''Panchayatnama'' would not affect the prosecution case. It was not at all necessary to mention crime number and the name of the accused persons in the letter sent to the Chief Medical Officer for postmortem. These are minor omissions. In the present case, S.I. (P.W. 10) had prepared the inquest reports and challan etc. of three deceased persons, S.I. (P.W. 9) had prepared the inquest reports and Challan etc. in respect of three other deceased persons and S.I. (P.W. 11) hard prepared the inquest reports and other documents in respect of seven deceased persons and, in such a situation, these minor omissions would not materially affect the prosecution case.

It was further contended that although it has come in the evidence that four or five days before the incident while Smt. Bhajan Kaur was going to serve the food to her family members, then accused Lakkha Singh and Gurmit Singh had abused her and used filthy languages and this aggravated the situation on account of which a ''panchayat'' was thought to be performed on the next day when this incident took place, but then this story of ''panchayat'' was not mentioned in the first information report. This again was not a very significant fact since it has been established beyond doubt by the evidence of the eye witnesses Km. Biro (P.W. 1), Paramjit Singh (P.W. 2) and Balvender Singh (P.W. 3) that the ''Panchayat'' was to be performed on the next day of the incident. On this point of ''Panchayat'' even accused Gurmit Singh and Jawahar are not consistent. While accused Gurmit Singh denied about the question of Panchayat, accused Jawahar in his statement under Section 313, Cr. P.C. accepted that there was a talk of ''Panchayat'' but it was from the side of the accused persons. I do not find any reason to hold that the nonmentioning of the question of ''Panchayat'' could, in any way, discredit the veracity of the eye witness (P.W. 2) who is the author of the first information report and who had seen the occurrence from beginning to end. The first information report could not be discredited on this account. The inquest reports which were prepared soon after the occurrence, the challance of the dead bodies and the other incrimination articles prepared on the spot, the copy of the first information report being available with the police officers while conducting the inquest reports have been fully proved by witnesses after witnesses and their evidence has not been shaken or discredited in any manner. The minor discrepancies or minor omissions here and there would not discredit the credibility of these documents which were prepared not by any interested witnesses but by the officials of even the neighbouring police stations and they have fully proved these documents beyond doubt and their evidence has not been shaken on material particulars of the case.

In the case of Paresh Katyandas Bhavsarv. Sadiq Yakubbhai, 1993 Cr.LJ 1857, the Supreme Court, while rejecting the submission that the first information report reached the Magistrate after some days, which would go to show that the same must have been brought into existence at a later stage, said :

''Having regard to the nature of occurrence, even if there has been some delay in sending the F.I.R., that by itself is not a ground to hold that the same must have been brought into existence at later stage and assuming there is a delay what the Court has to see is whether there are indications in the report to show that it was a result of subsequent deliberations. The particulars mentioned in that report do not in any manner give any indication of any exaggeration or a wholesale roping of the accused persons.�

A plain reading of the F.I.R. shows that P.W. 2 has particularly stated that part of the occurrence which he has only seen. After having gone through the same, I am satisfied that the report is true one and even accepting that there was some delay in sending the same to the Magistrate, that is not a ground to doubt the genuineness of the report. It is not stated that the injured could not identify the assailants nor it is stated that some unknown persons entered the house. One could understand if the injured had not mentioned the assailants or any of their particulars inspite of being asked specifically. The eye witnesses had seen the ghastly occurrence in the house. They themselves received serious injuries and rushed to the hospital immediately.

In the case of State of Punjab v. Hari Singh A.I.R., 1974 SC1168, it was held :

�The ordinary presumption is that a witness speaking under an oath is truthful unless and until he is shown to be untruthful or unreliable in any particular respect. Witnesses, solemnly deposing on oath in the witness box during a trial upon a grave charge of murder, must be presumed to act with a full sense of responsibility of the consequence of what they state. It may be that what they say is so very unlikely or unnatural or unreasonable that it is safer not to act upon it or even to disbelieve them. The ftigh Court reversing this approach have assumed that witnesses are untruthful unless it is proved that they are telling the truth.

It is true that the statement of a witness that he had got up to urinate just before a murder was committed, so that he could witness the murder looks suspicious. But the statement is not, for that reason, necessarily untrue.�

After considering the whole mass of evidence the truth has been established by the prosecution beyond any reasonable doubt and it would not be thrown over board on purely selfethical and conjectural ground.

In the circumstances enumerated in this case the decision relied upon by the appellant in the case of Mehraj Singh v. State of UP, 1994 S.C.C. (Cr.) 1390 : 1995 JIC757(SC) is of no relevance.

Coming to the ocular evidence of the three eye witnesses (P.Ws. 1, 2 and 3), it may be stated that they have fully proved the prosecution case and they have stood the test of cross examination. Km. Biro (P.W. 1) was aged about 13 or 14 years when she was examined on behalf of the prosecution. She is not a literate girl. According to her, the night of occurrence was a moonlit night and a lighted lamp (Dibri) was also present in the room. In the night of the incident she was sleeping with her sister Pammi. In the room her sister Rajvinder Kaur was also sleeping. Her parents Man Singh and Smt. Sita were also sleeping. Her sister K. Kanti, Km.. Akki and brothers Richpal Singh and Pamma were also sleeping on a cot. Her uncle E''alvendar Singh was also sleeping on a cot. His wife was not there since she had gone to her parent''s house. Pamma Singh and his wife Bhajan Kaur, who happens to be uncle and aunt of (P.W. 1) Km. Biro were sleeping with the son on the roof of the kitchen. The grand father namely, Nazir Singh was sleeping near the tubewell. Wife of INazir Singh was not there because she had gone to her parents house. On arrival of the three accused persons she wokeup and saw that Gurmit Singh and Lakkha Singh had naked swords in their hands and atonce Lakkha Singh attacked Km. Akki, Km. Kanti, Richpal Singh and Pamma, who were sleeping on the cot. He cut down these children. Accused Gurmit Singh attacked on Man Singh who is the father of P.W. 1 and cat him down by his sword. Smt. Sita the mother of P.W. 1 was also cut down by Lakkha Singh by the sword. She was cut down near the door. She has narrated that while she attempted to save her mother accused Lakkha Singh attacked her and she got injuries on her head and fingers. There after accused Lakkha Singh cut down Pammi and Rajvendar Kaur. Accused Gurmit Singh attacked Balvendar Singh who ran towards the ''chari'' crop, while Lakkha Singh and Gurmit Singh were busy in cutting down these persons accused Jawahar was throwing bricks on thereof where Karam Singh, Bhajan Kaur and their son Paramijit Singh were sleeping. Karam Singh jumped from the roof and went towards the ''chari'' crop but Gurmit Singh chased him and killed him there. Accused Lakkha Singh chased Bhajan Kaur and cut her down in the open field. While these persons were busy in cutting down Bhajan Kaur, this witness P.W. 1 ran away from her room and went in a sugarcane field. In the meantime, Paramjit Singh and Rani also came there. After committing murder of Karam Singh accused Gurmit Singh entered in the room of Karam Singh where Ranjit and Surjit were sleeping. This witness heard the bue and cry of Ranjit and Surjit. Thereafter, all these three accused persons went towards the tubewell where the head of the family Nazir Singh was sleeping. Nazir Singh was murdered near his tubewell and then all the three accused persons ran away. On hue and cry raised by this witness Paramjit Singh and Rani and Balvinder Singh neighbours also arrived there. P.W. 1, Km. Biro along with Balvender Singh went to Banda hospital and from there they went to Shahjahanpur for treatment of their injuries. In her crossexamination she has narrated the entire story as stated above. She also stated to be an illiterate girl having no idea of time. She has further stated that as soon as she reached in the field of sugarcane then Rani also arrived there. She has stated that SubInspector had enquired about the incident from her in the hospital. She has stated that when she got the injuries of sword she was crying but not unconscious. She has categorically stated that her father was murdered by accused Gurmit Singh but accused Lakkha Singh was busy in cutting down the children. She has further stated that after committing murders of Bhajan Kaur accused persons committed the murder of Nazir Singh. Her evidence about the manner of occurrence and the sequence of incident narrated by her has not been shaken in the crossexamination. The narration of events are supported even by the medical evidence and other official witnesses who held the inquest reports and proved the first information report and other documents relating to this occurrence and who are all independent witnesses. She has further proved the motive for this crime, although motive does not play an important role when the ocular evidence is believed on all material particulars of the case.

Here in the present case, even the motive has been proved by all the eye witnesses. It was stated that two or three days before this incident, while Smt. Bhajan Kaur was going to serve the meal to her husband then on the way accused Lakkha Singh, Gurmit Singh and Jawahar abused her with filthy languages. When Smt. Bhajan Kaur reported this matter to Nazir Singh, the head of the family and to Man Singh and Balvender Singh, then Nazir Singh, Man Singh and Balvender Singh complained about this to the three accused persons and they threatened that they will call a ''panchayat. When the ''panchayat'' was to be performed on the next day of the incident, this incident took place in the last night itself. She has deposed that Lakkha Singh used to visit the house of accused Gurmit Singh and used to talk with his wife in her absence. This certainly involved the prestige and honour of the family and, therefore, Nazir Singh had warned Gurmit Singh that Lakkha Singh shall not visit his house hereafter and will not stay in the house of Gurmit Singh. But then accused Gurmit Singh stated that he will not turn out Lakkha Singh and Lakkha Singh will remain continued to visit there. (P.W. 1) has stated that Lakkha Singh was visiting the house of Gurmit Singh just after the marriage of Gurmit Singh. She has stated that later he was living with accused Gurmit Singh in his house. She has further stated that the room of accused Gurmit Singh was clearly visible from the room of Km. Biro (P.W. 1).

(P.W. 2) Paramjit Singh is the sone of late Karam Singh, who was aged about 13 or 14 years. On his oral version the first information report (Ext. Ka1) was drawn up. He has fully proved the motive for committing this crime in the said manner as stated by P.W. 1 and has been fully corroborated by P.W. 1. He has given the ocular version of this incident which is again fully corroborated by P.W. 1. Narrating the incident, he has stated that he was sleeping with his father Karam Singh, mother Bhajan Kaur, and his brother Ranjit Singh and Surjit Singh and his sister Ranu alias Ranjit Kaur were sleeping in the room in which lamp (Dibia) was lighted. His uncle Man Singh and aunt Sita were sleeping near the door of their house. On one cot Rakchpal Singh, Pamma, Kanti, Akki were sleeping, Man Singh and Sita were sleeping on a cot while all other four children were sleeping on another cot. Km. Biro and Pammi were sleeping in the room which is in inner side. At about 11 p.m. (P.W. 2) Paramjit Singh went to urinate and then he returned and was going to sleep. But in the meantime, he saw accused Gurmit Singh, Lakkha Singh and Jawahar were coming from eastern side. Gurmit Singh and Lakkha Singh were armed with naked swords, while accused Jawahar had nothing in his hand. Since accused persons reached there, accused Lakkha Singh as once attacked Rakchapal Singh, Pamma, Kanti and Akki by swaords and cut down these four children. Accused Gurmit Singh had attacked Man Singh, Smt. Sita alias Surjit Kaur. Tb save the life from the accused persons, Man Singh ran away towards north and eastern side in crop of Chari while his wife Sita alias Surjit Kaur ran away towards her room. As soon as Sita alias Surjit Kaur ran away towards he; room accused Lakkha chased her and killed her at the door of the room. Accused Gurmit Singh cut down Man Singh towards north eastern corner of the house. Accused Jawahar was brickbatting towards Karam Singh who was sleeping with her wife on the roof. Accused Jawahar was saying that nobody would be spared. When Balvender Singh tried to save the life of Man Singh, his mother jumped towards western side and ran away towards southern side. Then accused Lakkha Singh chased her and killed her in the filed. This witness has further stated that he saw that accused Lakkha then entered in the room of Man Singh where Pammi, Reminder Kaur and Biro were sleeping. He heard hue and cry of Km. Biro but she became silent atonce while Pammi was crying with loud vocie. Rajminder Kaur was also crying in loud voice. P.W. 2 Paramjit Singh jumped from the roof and went in sugarcane field. Km. Biro also reached there. Accused Lakkha Singh and Gurmit Singh entered in the room of P.W. 2 Paramjit Singh P.W. 2 Paramjit Singh heard noise of weeping of Ranjit Singh and Surjit Singh. After that all the three accused persons went towards the tubewell where grandfather of P.W. 2 Paramjit Singh, namely, Nazir Singh was sleeping. P.W. 2 Paramjit Singh has stated that he heard that Lakkha Singh was haying that he has seriously injured Km. Biro although she ran away but she could not survive. P.W. 2 has further stated that he also heard accused Gurmit Singh saying that he had seriously hurt Balvendar Singh although he ran away but he would not survive. He further stated that he saw accused Gurmit Singh and Lakkha both attacking on his grandfather Nazir Singh. After committing murder of Nazir Singh all the three accused persons went towards southern direction. After ten or fifteen minutes, P.W. 2 Paramjit Singh reached to his room and on their hue and cry neighbours came there and he told the whole incident. He saw that in his room dead bodies of Ranjit Singh and Surjit Singh were lying. Four children were murdered in front of Man Singh''s room. Near the door Smt. Sita''s body was lying. Rajvender Kaur was murdered in the inner room. Man Singh''s body was found in eastern northern corner while Karam Singh''s body was found in the crop of chari. Biro was injured. Balvendar Singh then came out from the crop of ''chari''. Then these people went towards the tubewell. Bibi who is the mother of (P.W. 2) Paramjit Singh was murdered in the open field. Nazir Singh was murdered near the tubewell (Bamba). Km. Biro and Balvendar Singh were sent to hospital of Banda on a tractor trolley of Mangal Singh (P.W. 2) Paramjit Singh along with village Pradhan went to police station sehramau (north) at about 5 a.m. This witness has proved F.I.R. (Ext. ka1). After lodging the first information report, he returned to his house with village Pradhan.

P.W. 2, Paramjit Singh is not an injured witness. He was aged about 13/14 years and is the scaribe of the first information report. It was contended on behalf of the accused that in all probability this witness was not present on the spot since he was spared and not hurt in any manner. It was further contended that the facts mentioned in the first information report were improved at a later stage and certain vital omissions in the first information report could not be explained by him. The most important aspect was on the point of the two injured witnesses Km. Biro (P.W. 1) and Balvender Singh (P.W. 3) being taken for medical examination.

It may be mentioned that Km. Biro (P.W. 1) was examined by Dr. Habib Ahmad at 6.30 a.m. on 18.8.1986 at the Primary Health Centre, Banda as produced by Constable Vijayapal of police station Banda. Balvender Singh (P.W. 3) was examined at 1 p.m. on the same day at the District Hospital, Shahjahanpur by the Medical Officer of the said Hospital, Dr Amar Lal, this mistake in the first information report and omission to mention the fact that Balvender Singh was taken to the District Hospital was put as a grant to disbelieve the testimony of this witness as wholly unreliable. But the relevant fact to be noticed is that Km. Biro (P.W 1) had been examined at 6.30 a.m. at a Primary Health Centre for which the papers along with the constable had been forwarded from police station Banda, thus the Banda police had certainly known about this incident before 6.30 a.m. in the morning. On the basis of statement of (P.W. 10) SubInspector Dinesh Kumar Singh of Police Station Banda in his cross examination that the report of this incident was received at Banda police station by means of wireless at 7.30 a.m. and thereafter he left from the place of occurrence reaching village Rampur Pipariya at 9.25 a.m. and his further statement that he had no information whether any injured person had come to the police station on the date of the incident, it was contended that the police papers were subsequently manfacutured and even the first information report was lodged subsequently, therefore, P.W. Paramjit Singh could be summoned from some place outside where he might have gone and afterdue deliberation the first information report was got scribed by P.W. 2. It was further urged that this witness was on the roof and could hardly see the occurrence taking place down below and even if he could have seen the ghastly crime in which every member of the family was being wiped out he would not venture to jump down the roof to be killed like other members of the family.

It is difficult to accept the aforesaid contention. It has not been suggested to this witness that at the relevant time he was not living in the village or that he had gone out. The place of incident is his parents'' house and of his own grandfather. In the normal course, therefore, he was bound to be residing there unless the contrary was proved. In normal course, the presence of this witnesses at his ''Jhala'' has to be accepted as asserted by him and there is no basis for the defence suggestion to hold that he might not have been present on the spot. Once it is believed that this witness must have been present on the spot, then any other suggestion based on surmises about his presence has to the rejected and the mere fact that this witness was not injured would not render his evidence doubtful. He claimed that he jumped down and reached the sugarcane field from where he had seen accused Gurmit Singh entering the roofs of his portion and killing Surjit Singh and Ranjit Singh as also accused Lakkha Singh chasing his mother Bhajan Kaur and killing her at the back of his ''Jhala''. The appellant Gurmit Singh is the own uncle of this witness and his mother, father and other close relations were the victims of this occurrence. He might have been frightened and scared but then it would have been a natural anxiety for this witness to watch the rest of the occurrence as well. In the circumstances, there is nothing unnatural that at a particular point of time, finding an opportunity to escape in thread joining sugarcane field since he went to hide himself along with his own sister Rani and cousin Km. Biro (P.W. 1), he would not have seen the occurrence. Further there appears to be no cogent reason as to why he would be deposing falsely against his own uncle unless he had seen his uncle killing his family members one after the another. In the nature of the evidence that, has been produced by this witness and corroborated by the other two injured witnesses, (P.W. 1) and (P.W. 3), I find no reason to hold that he was not present and had not seen the occurrence. The presence of this witness at the time of occurrence cannot be doubted who has narrated the entire incident where 13 persons of one family were killed in a brutal manner. His evidence is consistent on each material particulars of the case and is fully corroborated by the medical evidence and the other two eye witnesses/There is nothing in crossexamination to dislodge the credibility of his statement giving the narration of the story in the first information report. There is no reason why the first information report would have been lodged after due deliberations. A few omissions in the first information report could not be a ground to hold that the first information report was not lodged at the time alleged by the prosecution. His testimony on the points of motive, seeing Gurmit Singh and Lakkha Singh armed with swords and attacking his uncle and his children as also his father and mother being chased by the assailants has to be believed. In the far s and circumstances of the present case, it is difficult to believe the suggestions of the defence that the story set up in the first information report was cooked up after deliberations. These eye witnesses belonged to the same family and they had no reason to implicate the accused persons falsely. The entire incident has been narrated from the beginning to end which could not be done at the master mind of some outside agency. The whole family was finished during that night hours and after the occurrence all were found slain. There was no reason why accused Gurmit Singh and Lakkha Singh were missing from the house when the entire family members were being finished by any outsiders. No story was left oui for being cooked up with the deliberations of any outside agency. The injury caused to each one of them were medically proved to have been caused by swords. These witnesses narrated the complete picture and there is nothing in the cross examination to shake the credibility of these witnesses, on material particulars of the case which has also been fully corroborated by independent witnesses. Thus, the evidence of this witness (P.W. 2) has fully proved the prosecution case against the accused persons.

The next eye witness of the occurrence is Balvendar Singh (P.W. 2) who is the real brother of accused Gurmit Singh. He was injured in this occurrence and for months he was unable to speak. According to him, there was sufficient moon light at about 10 or 11 p.m. He was sleeping in the Sahan. His brother Karam Singh, his wife Bhajan Kaur and (P.W. 2) Paramjit Singh, s/o Karam Singh were sleeping on the roof of the kitchen. Surjit and Ranjit were sleeping inside the house. Rani was also sleeping along with Surjit and Ranjit. His brother Man Singh and his wife were sleeping outside their room. The children of Man Singh, namely Rachapal Singh, Kami, Pamma and Akki were sleeping on a cot. Km. Eire (P.W. 1), Rajvendar Kaur and Pammi were sleeping in the room. This witness P.W. 3 woke up on hearing the sound of arrival of the accused persons and saw that accused Gurmit Singh attacked Man Singh and was cutting him by his sword. He attempted to save his brother Man Singh during the course of which, he was attacked by Gurmit Singh by his and got injuries cutting down his Jaw. Lakkha Singh was attacking the children of Man Singh''s brother and was cutting them down by his sword. Receiving (P.W. 3) fled in the Chart field in order to conceal himself. He then saw that accused Gurmit Singh was assaulting Karam Singh with his sword in the that Chari field. P.W. 3 was unable to speak out on account of serious injuries cutting down his jaw. He heard crying of Km. Biro and Paramjit. When the accused persons left the place, he found that his family members and relatives were murdered by the accused persons. The neighbours also arrived when both the injured namely, P.W. 3 Balvendar Singh and P.W. 1 Biro were sent for medical treatment to Banda on a tractor trolly. They got first aid in the hospital and later they were transferred to District Hospital, Shajahahanpur. Both the injured were admitted in the District Hospital, Shajahanpur.

It is worth noticing that the examinationinchief of PW 3 was recorded in about six pages. In crossexamination no question was ever put to this witness about the incident, although so many other questions were put to him about the alleged e.mity. Thus, the statement of this witness P.W. 3 relating to the incident as stated by him remained virtually unchallenged. The suggestion put to him that on account of trees and their thickness and height it was not possible for him to see the incident was categorically denied by him. He is an injured witness and had seen the person causing injuries to him as also to others. Thus, he had seen the occurrence himself and the injuries caused to various others who were murdered by swans of swords, have been fully corroborated by the medical evidence. In normal course it was expected of him that when he had seen the part of the occurrence before he fled and concealed himself in the ''chari'' field, he would have the natural curiosity to watch the remaining part of the occurrence as well. In normal course, even though frightened and injured he would have the natural instinct to see the concluding part of the incident. The narrative of the incident given by him is found fully corroborated by the other injured witnesses P.W. 1 and P.W. 2. This strong motive in this case for the accused persons in murdering the whole family has been stated by him which is consistent with the statement of other witnesses P.W. 1 and P.W. 2. Accused Gurmit Singh and P.W. 3 are real brothers. He had no reason to falsely implicate his real brother and, therefore, the suggestion made on behalf of the defence regarding false implication on account of enmity has to be rejected. Again the suggestion put to him on behalf of the defence that the murders were committed by the terrorists and during that attack he was injured in the said incident was firmly denied by this witness. That has been further corroborated by the Investigations Officer who has stated that during his tenure of stay in the police station there was no activity of any terrorists in that locality.

Considering the ocular testimony of P.Ws. 1, 2 and 3 out of whom P.Ws. 1 and 3 are the injured witnesses, there is no room for any doubt that the occurrence did take place in the manner alleged by these witnesses and the prosecution case relating to the occurrence has been fully proved beyond any reasonable doubt. When the eye witnesses are believed and the manner in which the occurrence has taken place is proved by them, the motive is not of much importance but even then, in the present case, the strong motive for the accused persons to have committed such a brutal murder killing 13 persons of a family has been consistently proved by these witnesses. Minor contradictions in the first information report or in the statement made before the police will not weaken the credibility of the statement of the eye witnesses and the injured witnesses whose parents and relatives including their young children were murdered. Even the recovery of the swords is not of much importance, although the same has been recovered at the instance of the accused persons, since all the injuries on each one of the deceased have been medically found to have been caused only by sword which was in the hands of Gurmit Singh and Lakkha Singh. The postmortem report is consistent about the nature of the injuries caused by means of a sword and the same has fully corroborated the story narrated by these witnesses. The further circumstance that in order to conceal his identify appellant Gurmit Singh entered in the saloon and got his hair clean shaved has also been proved on record. That is also an additional circumstance against the conduct of Gurmit Singh.

Such has been argued to destroy the evidence of these eye witnesses by putting suggestions to them regarding the source of light but, all the witnesses are consistent on this that it was a moonlight night and in addition to it there was a lighted lamp (Dibri) and thus there was sufficient light for the witnesses to watch and see the whole occurrence. From the evidence of P.W. 18 the Investigation officer and the evidence of P.W. 11, SubInspector Sardar Singh it has been proved that 17.8.1986 was the festival day of Iduzzuha and near about Iduzzuha, there remains moonlight. One can take judicial notice of this fact as well. In fact, Idulfitra is celebrated next day after the visibility of moon, while Iduzzuha is celeberated ten days after the visibility of moon. Thus, it became impossible for the defence to challenge that 17.8.1986 was not the festival of Iduzzuha. It is also established that on account of this festival the moon was almost full in shape when this incident took place. There is nothing on the record to prove the contrary that the sky was cloudy at the time of the incident and no such suggestions have been put to the witnesses. In the facts and circumstances, it has been established on evidence, that in the night of 17.8.1986 at about 11 p.m. there was sufficient light when the incident took place. It has been further established on evidence that all the family members of Nazir Singh were not sleeping together at one place. Nazir Singh was sleeping near his tubewell while his other son and daughterinlaw and grand children were sleeping either in their rooms or in the Sehan of that ''Jhala'' or on the roof. A Dibia (lamp) had also been lighted in the room and had been placed there. The memo of recovery of this Divia has been proved by P.W. 18 the Investigating Officer. In these circumstances, the defence case that there was no sufficient light for the witnesses to have been the occurrence has to be brushed aside.

Attempt on behalf of the defence to create doubt doubt over the prosecution case by putting suggestion to the witnesses that the dacoits might have committed the murder is just based on imagination. If the dacoits would have entered the house with a view to commit dacoity they might have taken away the property of some kind but that is not the case here. Here, in the present case, the accused were interested in brutally murdering the family members one after another and they succeeded.

On careful consideration of the materials on record 1 have no hesitation in holding that the prosecution has proved its case beyond all reasonable doubts. Accordingly the appeal preferred by accused Gurmit Singh is dismissed and the Reference No. 6 of 1992 regarding confirmation of death sentence awarded to appellant Gurmit Singh is accepted. Appeal dismissed.