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29. Accused appellant Kanti also stated the same facts. He has specifically stated the he was present the whole night on the date and time of the incident in the mandap ceremony of his cousin brother's son in his village. Photography of the ceremony was also done. P.W.2 Suraj Pal was not present at the time of occurrence and he was present at his service place.

30. Accused appellant Kamlesh, stating the same facts as has been stated by other accused appellants, has specifically stated that the informant wanted to usurp the land, therefore with the aid of witnesses, he (informant) had committed the present offence and falsely implicated him in this matter.

31. Accused appellants in their defence have examined D.W.1 Aneg Singh, who claimed himself to be the cousin of accused appellant Kanti. He is the witness of the alibi of the accused appellant Kanti. D.W.2 Radhey Shyam is the senior clerk posted in the irrigation department at Etah. He produced the attendance register showing the presence of P.W. 2 at his service place. D.W.3 Gajendra Singh claimed himself to be the family member of D.W.1 Aneg Singh, who performed photography in the said mandap ceremony. D.W.4 Vijay Pal Singh is also the witness of the plea of alibi of the accused appellant Kanti. D.W.5 Kanti, the accused appellant has also examined himself before the Court to prove the plea of alibi.

34. Learned counsel for the appellants have submitted that the prosecution was not able to bring home the guilt of the appellants from the evidence, but the trial Court has illegally convicted and sentenced the appellants. Incident took place in the night. P.W.2 Harbansh is a chance witness and was residing at a distance of 500 meters from the place of occurrence, there was no occasion for him to remain present at the place of occurrence. He was aged about 75 years. It is an improbable story that he would have gone to see the musical and dance programme in the night. P.W.2 Suraj Pal is also a chance witness. He was not present on the spot. He served in the irrigation department at District Headquarters, Etah. Attendance register proved by the defence witnesses clearly indicates that he was present at his place of posting on the date and time of incident. Motive attributed to the accused appellants was also not established by the prosecution. P.W.3 Rajveer has not disclosed this fact immediately that he had seen the deceased Manoj Kumar along with the accused persons in the night itself. This fact was stated for the first time in the statement under Section 161 Cr.P.C. only to connect the death of the deceased Manoj Kumar with the present crime. Conduct of P.W.1 and P.W.2 does not inspire confidence of the Court. They are not reliable witnesses. There are major contradictions on the material point in their statements. None had witnessed the incident regarding the death of the deceased Nattho Devi. The most material witnesses Dev Karan, Suresh and Shiv Shanker were not examined by the prosecution, therefore, presumption against the prosecution would be drawn that if they were examined, they would have not supported the prosecution case. Medical evidence also does not support the prosecution version. In the first information report, nothing was mentioned about causing the death of the deceased Hori Lal by pressing the sticks / danda over his neck. The Doctor, who conducted the postmortem of the deceased Hori Lal, has clearly opined that injuries found on the neck of the deceased Hori Lal could not be caused by sticks / danda. The last seen evidence is also not reliable as it is not supported by any other independent evidence. There is delayed interrogation of the witnesses and no plausible explanation has been offered. The first information report was also lodged belatedly and it is ante timed document. Rajendra Singh, who could explain the time of the incident, was also not examined by the prosecution. It appears improbable that Rajendra Singh reached in the morning of 26.2.2009 itself from Noida to the place of occurrence. All the witnesses are relatives and interested witnesses. The shrieks made from the house of the deceased could not be heard from the place where the musical and dance programme was going on. Shrieks made from the house of the deceased Hori Lal could also be heard from the house of Suresh, there were many people in the house of Suresh, but they could not hear the hue and cry raised from the house of the deceased. It was also submitted that the conduct of Suresh appears unnatural that the door of the house of the deceased was open, but he entered in the house of the deceased through the roof of his house. It was further submitted that appellant Kanti was not present on the spot as is clear from the defence evidence. He was present in his village and participated in the mandap ceremony. Specific role of the appellants were not assigned by the prosecution witnesses, despite the fact that they claimed themselves to be the eyewitness. There are major contradictions in the statements of P.W.1, P.W.2 and P.W.3 on material point. There is improvement at the stage of prosecution evidence before the Court and the same is fatal to the prosecution case. Details, as require under the law, were not mentioned in the inquest report. Time mentioned in the inquest report of the deceased Manoj Kumar also indicates that the first information report was not in existence at the time mentioned in the chick F.I.R. Appellant Amar Singh is a handicapped person. He could not participate in the crime. It was next submitted that the present case does not come under the purview of rarest of rare case. Trial Court has wrongly awarded death punishment to the appellants.

68. Specific plea has been taken on behalf of the accused appellant Kanti that he was not present at the place of occurrence at the time alleged in the F.I.R. He has not only examined himself, but also D.W.1 Aneg Singh, D.W.3 Gajendra and D.W.4 Vijay Pal Singh. From the close scrutiny of the statements of these defence witnesses, definitely it cannot be held that accused appellants Kanti was present on the date and time of the occurrence in village Virsua. On minutely analyzing the statements of these witnesses, it emerge that mandap ceremony had started at noon itself. Photography would also have been lasted maximum till 9:00 or 10:00 P.M. in the night. Photo camera was not a digital camera. Whether photographs, as stated by the defence witnesses, were actually clicked on the date and time stated by the defence witnesses or not, there is no cogent and creditable evidence produced by the defence. Therefore, trial Court has rightly disbelieved the plea of alibi taken by the accused appellant Kanti.