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(4) Since both the above-captioned appeals arise out of a common factual matrix and impugned judgment and order dated 14.12.2009, hence this Court is disposing of the above-captioned appeals by a common judgment.

(B) Factual Matrix (5) Shortly stated the prosecution case runs as under :-

Informant Brahmadeen (P.W.1) had filed a written report (Ext. Ka.1) before Police Station Nighasan, District Kheri on 19.04.2004, at 10:00 a.m., alleging therein that in the intervening night of 18/19.04.2004, at about 02:00 a.m., Sarafat, Noor Mohammad and Ajay (convicts/appellants) came in front of his house and started to drink water by plying handpump installed in front of his house, upon which his father (deceased Kadhiley) objected. Thereafter, all three persons (convicts/appellants) used abusive language against his father (deceased Kadhiley) and when his father (deceased Kadhiley) objected them from use of abusive language, then, all three persons (convicts/appellants) brought his father (deceased Kadhiley) towards road. Seeing that, he (P.W.1) and his sister Maina Devi (P.W.2) ran to save their father (deceased Kadhiley) but all three persons (convicts/appellants) murdered his father (deceased Kadhiley) with sword by inflicting it on his neck. On hue and cry, Gauri Shanker (P.W.3), Tulsi and a large number of other persons came there and challenged the convicts/appellants, then, all three persons (convicts/ appellants), while threatening them to kill, ran towards south direction of the village. On account of fear, he did not go to lodge report in the night, however, he went to lodge report in the morning.

(15) Reverting to the testimony of the witnesses of fact, P.W.1-Brahmdeen, who is the informant of the case and son of the deceased Kadhiley, had deposed before the trial Court in his examination-in-chief that before one year ago, at 02:00 a.m., when Sarafat, Noor Mohammad and Ajay (convicts/appellants) were drinking water by plying handpump installed near to his house, his father (deceased Kadhiley) made objection, upon which convicts/appellants used abusive language against his father Kadhiley (deceased). Thereafter, when his father Kadhiley (deceased) asked the convicts/appellants not to use abusive language, convicts/appellants brought his father towards road. After that, when he (P.W.1) and his sister Maina (P.W.2) ran to save their father, then, convicts/appellants murdered their father by inflicting injuries on the neck of their father with sword. Meanwhile, Gauri Shanker (P.W.3) and Tulsi came there and upon being challenged by them, the convicts/ appellants fled away towards south direction threatening them. Thereafter, on account of fear, he did not go to lodge the report in the night. In the morning, he got the report scribed from a person outside the police station on his own dictation and after scribing, the scribe read it over to him. He, thereafter, affixed his thumb impression on it and lodged it at police station Nighasan. He proved the written report (Ext. Ka.1).

(16) P.W.2-Maina Devi, who is the sister of the informant P.W.1 Brahmadeen and daughter of the deceased Kadhiley, had deposed in her examination-in-chief that hand-pump was stationed in front of her house. One year and one month ago, at 02:00 a.m., Sarafat, Noor Mohammad (convict/appellant) of her village and their companion Ajay (convict/appellant) were drinking water by plying handpump. When her father (deceased Kadhiley) made objection to it, convicts/appellants used abusive language against him. Thereafter, her father Kadhiley asked the convicts/appellants not to use abusive language, then, convicts/appellants brought her father (Kadhiley). Thereafter, she and her brother Brahamadeen (P.W.1) ran to save their father Kadhiley and raised alarm. On alarm, Gauri Shanker (P.W.3) and Tulsi came there. Meanwhile, three accused (convicts/appellant) murdered her father Kadhiley by cutting neck of her father (Kadhiley) with sword. Thereafter, on challenging, accused persons (convicts/appellants), while threatening to kill them, fled away towards south direction.

E.2 Evidence of ''interested witnesses' (36) The contention of the learned Counsel for the convicts/ appellants is that all the prosecution witnesses P.W.1, P.W.2 and P.W.3 (so called eye-witnesses) are all related and interested witnesses as they are son, daughter and nephew, respectively, to the deceased Kadhiley, hence their evidence cannot be said to be a trustworthy.

(37) To prove its case, the prosecution has relied upon the evidence of three eye-witnesses viz. PW-1 Brahmadeen, PW-2 Maina Devi and PW-3 Gauri Shanker. PW-1, who is the son of the deceased, had deposed that on the day of incident i.e. in the intervening night of 18/19.04.2004, at about 2:00 am, convicts/appellants Sarafat, Noor Mohammad and Ajay, were drinking water from the hand-pump installed in front of his house, upon which his father Kadhiley (deceased) had made objection. Thereafter, convicts/appellants used abusive language against his father Kadhiley, to which his father Kadhiley asked convicts/appellants not to use abusive language. After that convicts/appellants brought his father Kadhiley towards road. On seeing this, he (P.W.1) and his sister Maina Devi (P.W.2) ran to save his father Kadhiley but convicts/appellants were inflicting injuries on the neck of his father Kadhiley with sword, as a consequence of which, his father Kadhiley died on spot. On hue and cry, Gauri Shanker (P.W.3) and Tulsi were also came there and they challenged the convicts/appellants. After that, convicts/appellants, while threatening to kill them, ran away towards southern direction. PW-1 also deposed that he did not immediately went to the police station due to the fear of the convicts/appellants and lodged his report on 19.04.2014 at 10:00 a.m. He also deposed that a case under Section 307 I.P.C. was contested between the deceased Kadhiley and Kamlesh and his son before 11 years ago. During the course of his cross-examination, PW-1 was questioned in detail about the location of the incident and the position of the deceased. He also deposed that first of all, he heard the noise of his father Kadhiley and after that he heard the noise of his sister Maina Devi. At the time of the incident, Maina Devi (P.W.2) was with his father Kadhiley. His house and thatch where his father (deceased) and his sister (P.W.2) used to live, were joined with a corridor. At the time of incident, he was at his house, which was 5-6 steps away from the house where his father Kadhiley and Maina Devi (P.W.2) were living. He denied the fact that he had written in the report that all the three convicts/appellants murdered his father by inflicting injuries on the neck of his father with sword, but he deposed that when he reached at the place of incident, he saw sword in the hands of Sarafat (convict/appellant) and no weapon was seen by him in the hands of other convicts/appellants. P.W.1 had also deposed that lamp was burning inside the thatch of his father Kadhiley. P.W.2 - Maina Devi specifically deposed about the proximity of her house from the house of her brothers Brahmadeen (P.W.1) and Sunder Lal. She denied that at the time of incident, she went to wake up his brother Brahmadeen nor his brother Brahmadeen came her house to wake up her. She furnished a cogent reason to be present at the place of incident stating that she being daughter of the deceased Kadhiley was sleeping on a cot inside the house along with his sister Kanyawati. During his deposition, PW-2 specifically referred to the role and presence of the convicts/appellant Sarafat being armed with sword and other convicts/appellants caught hold the legs and hands of the deceased Kadhiley. PW-3 Gauri Shanker, in similar terms, deposed about the place where convicts/appellants inflicted injuries on the person of the deceased. PW-3 stated that at the time of incident, he was sleeping in his house, which is adjacent to the house of the deceased Kadhiley. On hearing the noise of Maina Devi (P.W.2), he came outside his house and saw in the light of his torch that while using abusive language, Sarafat, Noor Mohammad and Ajay were pulling the deceased Kadhiley and then Maina Devi (P.W.2) ran to save his father. After that Sarafat, Noor Mohammad and Ajay hit with sword on the neck of the deceased Kadhiley, as a consequence of which, the deceased Kadhiley died instantaneously. Thereafter, the convicts/ appellants, while threatening to kill them, fled away. On screaming, Tulsi came.