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Post mortem on body of deceased Km. Poonam was conducted by Dr. R.A.Sharma and Dr. Ajay Agarwal jointly and following ante mortem injuries were found and noted:

i. Ligature mark 13 cm x 1.5 cm oblique, lower part of neck in middle part and extending upto right side upper part of neck. On dissection underlying muscles contused.

On internal examination membranes and brain were found congested, pleura, Jarynx, trachea were found congested. Hyoid bone was found fractured. Both lungs congested. Semi digested food was found in stomach. Cause of death was due to Asphyxia as a result of strangulation. Vaginal smear made. Slide prepared and sent to Pathologist SNMH Firozabad through S.O., P.S. Ramgarh.

16. Learned counsel for the appellants submitted that presence of Ujjawal along with the deceased in the house is doubtful. It appears that on the date of incident, he was present in the house of his uncle Doctor Satyapal and subsequently, he was introduced as eye-witness. Had Ujjawal, who was aged about 5-6 years at the time of incident, been present in the house, he might have also been killed by the unknown assailants and even if he survived, his injuries should have been got examined. According to him there was attempt to kill him by strangulation but there is no medical report. He was a tutored witness because when statement was recorded after about 3 years, he was aged about 8 years and in cross-examination, he replied like a matured person. There is a contradiction in the statement recorded under Section 161 Cr.P.C. and the statement recorded before the court. The name of Ujjawal has also not been mentioned in the F.I.R. The F.I.R. was against unknown persons. Had he disclosed the name of any of the appellants including name of Hariom alias Hero, the same should have been disclosed in the F.I.R. lodged by Kotwal Singh (P.W.-1), uncle of Ujjawal (only surviving member of the family of deceased Smt. Nirdosh, wife of late Rajpal).

25. Learned Government Advocate further submitted that merely because name of Ujjawal, who was minor aged about five years at the time of incident, was not mentioned by P.W.-1, brother-in-law of deceased Smt. Nirdosh, after seeing murder of four persons of family of his deceased brother, presence of Ujjawal in his own house will not be disbelieved unless otherwise his presence at any other place was proved. His presence is natural and merely because he is a child witness, his statement is not liable to be rejected. He was in a position to understand the question put to him and was able to narrate the story seen by him with regard to the incident. He has also supported the call on mobile of his mother before the incident which is corroborated by the statement of P.W.-2 Ompal who saw Hariom while having conversation on mobile with deceased Smt. Nirdosh which was informed by him after query was made by the I.O. There is no dispute regarding the place of incident. As far as medical examination of Ujjawal is concerned, considering the murder of four members of the family and since Ujjawal was found hale and hearty and if there was no visible injuries, the family members did not decide for medical examination then merely on this ground also presence of Ujjawal has not to be disbelieved. Merely on the basis of presumption and some minor and natural contradictions and discrepancies, the statement of child witness Ujjawal (P.W.-5) is not liable to be discarded. The post mortem has also corroborated the statement. According to opinion of the Doctor, the cause of death was throttling and strangulation and there was incised wound found on neck of Smt. Nirdosh. Since Hariom was known, hence when he knocked, the door was opened, there was no suspicion, and when they demanded water the same was given. However, since intention was of looting and they found chance of resistance, hence, it appears that firstly they slit neck of Smt. Nirdosh and thereafter he stopped the children by throttling and strangulation to raise any alarm. Since there was no doubt by the Doctor of poisoning and as such he did not preserve viscera.

45. As far as argument of counsel for the appellant that it might be a case of poisoning and after they became unconscious they were throttled or strangulated to death, because bodies were found straight upward. Merely on this ground also the prosecution story has not to be discarded. Doctor has not preserved viscera because he did not suspect as case of poisoning. According to the statement of Doctor R.N.Sharma, who conducted the post-mortem examination, the cause of death was injury on neck of Smt. Nirdosh and strangulation and it was not a case of hanging, rather in view of the ligature mark found, it was a case of strangulation. As far as the injury on the neck of deceased Ansul was concerned he might have been killed by closing his mouth and pushing his neck so it was a case of throttling. There was clean cut incised wound on neck. All the injuries were ante mortem injuries and the post-mortem report had supported the statement of P.W.5 Ujjawal. There is no contradiction to disbelieve his statement. Further if statement of witnesses are trustworthy then the same has not to be disbelieved because the Doctor did not preserve viscera and no opinion was obtained. The post mortem report has not to be disbelieved in view of the statement of the witnesses which is supported by the post mortem report and the same was proved by the Doctor.