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1. All the four above named appellants have been sentenced to death under Section 302 read with Section 149 I.P.C. for committing the murder of Surendra Singh son of Rajvir Singh aged about 26 years. Appellant Rakesh has further been sentenced to two years R.I. and fine of Rs.2000/- for causing injuries to Smt. Krishna Devi, P.W.2, the mother of deceased Surendra Singh.

2. As per the prosecution case incident occurred on 13-6-1992 at about 8 p.m. near the house of Amilal in village Mithli within the area of police station Baghpat, which was then in District Meerut. Appellants Ram Kumar, Jai Prakash and Devesh Kumar were said to be armed with country made pistols while appellant Rakesh and co-accused Parvendra with PHARSA and SPEAR respectively. It is alleged that all the accused persons caused as many as 19 injuries to Surendra Singh from their respective weapons. Shrieks and cries of Surendra Singh attracted his mother Smt. Krishna Devi, P.W.2 and brother Udai Singh to the scene of occurrence from their 'Gher' which was placed at a distance of about 50 paces from the place of occurrence. Accused persons made an attempt on Udai Singh also but he ran to his house and saved his life by bolting the house from inside. Smt. Krishna Devi, P.W.2 showed courage and came forward to the rescue of her son whereupon she was assaulted with PHARSA and SPEAR. Accused persons then set Surendra Singh on fire with kerosene. In the meantime pressure of witnesses mounted whereupon accused ran away. They were identified by the witnesses in moon light as it was a night of full moon.

20. Regarding the occurrence P.W. 1 Udai Singh has deposed that on the day of incident he was sitting in the Gher of Amilal. Time was about 8 p.m. There was light of full moon. All the five accused persons came there. Raj Kumar, Jai Prakash and Devesh were armed with country made pistols, Rakesh was having PHARSA while parvendra had a BALLAM (Spear) with him. First of all they fired upon Surendra Singh and thereafter he was assaulted with PHARSA and SPEAR. When the mother Smt. Krishna Devi P.W.2 went there to save Surendra Singh she was also assaulted with PHARSA and SPEAR. The witness further added that when the himself went to the rescue of his brother, all the accused persons rushed towards him but he saved his life by running to his house. Thereafter all the accused persons poured kerosene on Surendra Singh and set him on fire. Surendra Singh died on the spot. He further stated that after the incident, he wrote down the report in his own handwriting and lodged the same at the police station in the same night at 21.45 hours. He proved the F.I.R. as Ex.Ka-1. In the cross examination he has stated that Amilal's Gher was adjacent to his house. He has further stated that when on hearing the sound of fire shots he came out of the house and reached the place of occurrence. He saw that his brother Surendra Singh was lying on the ground and his mother had also been injured. Blood was oozing from her hand. By that time Surendra Singh was not set on fire. He himself saw accused persons setting Surendra Singh on fire. Rakesh appellant had sprinkled kerosene on Surendra Singh.

21. P.W.2 Smt. Krishna Devi is an injured witness. She has stated the entire facts relating to the occurrence in question. According to her, incident had occurred at about 8 p.m. At that time her son Surendra Singh was sitting in the Gher of Amilal. All, the accused persons came there. Raj Kumar, Jai Prakash and Devesh were having country made pistol while Parvendra and Rakesh were holding SPEAR and PHARSA respectively. Firing was made upon Surendra Singh and thereafter he was assaulted with SPEAR and PHARSA. When she came forward with a view to save her son, she was also assaulted. She categorically stated that as a result of assault, her hand was cut and bone fractured. She has also stated that, after causing injuries to her, the accused persons set Surendra Singh on fire after sprinkling kerosene. She has further stated that her injuries were medically examined in Primary Health Centre, Baghpat. In cross-examination she has stated that at the time of occurrence she was present in her house. Her son Surendra Singh was called by the accused persons through Amilal's son. On hearing cries' of her son she rushed to the scene of occurrence and saw Surendra Singh lying on the ground. She identified the accused persons in moon light. She further stated that when she reached there all the accused persons were standing near her son Surendra Singh with their respective weapons. It has also been stated by her that she was assaulted by Rakesh and Parvendra.

23. It was vehemently argued by the learned counsel for the appellants that both the witnesses have admitted that they had not seen the actual assault upon the deceased and as three empty cartridges were found, the prosecution came with the case that all the three accused persons fired upon the deceased and this version is belied by the post mortem report as during post mortem examination only one gun shot injury was found. It was further submitted that there were large number of incised injuries but there was not even a single punctured wound and, therefore, the use of spear is wholly negatived. It is true that, the witnesses were attracted to the scene of occurrence on hearing sound of fire and by the time they could reach on the spot firing act was over. The mere fact that only one gun shot injury was sustained by the deceased would not make the prosecution case of firing of three shots doubtful as two shots might have missed the target. Dr. Naresh Kumar, P.W.5 had found as many as 18 incised injuries on the body of the deceased. It has not been asked from any witness as to what was the shape of the Spear and in what manner the same was used. We thus find no inconsistency between the ocular testimony and the medical evidence. Smt. Krishna Devi P.W.2 in clear words has stated that when she came forward to save her son she was also assaulted. This part of her statement gets full corroboration from the statement of Dr. B.D.S. Kushwaha, P.W.6 who had medically examined her on the same night at 11.10 p.m. In his deposition before the trial Court he has stated that injuries No. 1, 2 and 3 could be caused by sharp edged weapon while injury No. 4 could be the result of friction and injury No. 5 was caused by a blunt object. He has further opined that injuries Nos. 1, 2 and 3 could be the result of PHARSA and BALLAM blows while injury Nos. 4 and 5 could have been caused from the blunt side of these weapons. The injuries of Smt. Krishna Devi by no stretch of imagination could be self inflicted or self suffered. Since Smt. Krishna Devi P.W.2 had herself sustained injuries her presence at the scene of occurrence cannot be doubted. Further the nature, kind and seat of injuries fully support her claim that she sustained injuries on her person when she was trying to ward off the attack which was made upon her when she tried to intervene to save her son Surendra Singh. It could not be disputed from the appellants side that the night of incident was a full moon night. All the accused persons were thickly related to the witnesses being their own family members. Smt. Krishna Devi who herself sustained serious injuries at the hands of accused persons was naturally in their close proximity. In such a situation she would have easily seen the faces of the accused persons in the light of full moon. The fact that on the day of occurrence there was full moon, was checked and verified by the trial Judge from the 'Panchang' and the learned counsel for the appellants could not dispute before us that at the time of occurrence full moon light was available. P.W.I and P.W.2, therefore, could not be having any difficulty in identifying the accused persons, their own collaterals. Their statements that after making assault upon the deceased an attempt was made to burn him with the help of kerosene again gets support from the post mortem report wherein Dr. found burns at several places on the body of deceased. It cannot be expected that Smt. Krishna Devi P.W.2 being the mother of deceased would rope in wrong accused persons leaving out real killers of her own son. She would be the last person so as she must be interested in seeing that all those who killed her son and caused injuries to her are booked and convicted.