R. K. BATTA, J. - (1.)APPELLANT was tried for the murder of Ashok and Rajesh @ Khannu, who are both brothers, as also for attempting to murder their mother Meerabai and also for voluntarily causing hurt with sharp weapon to Deokaran, father of the deceased u/ss. 302, 307 and 324 of the Indian Penal Code.
(2.)PROSECUTION had, in all, examined 15 witnesses. The trial Court, after accepting the evidence of five eye witnesses and the other evidence on record, convicted the appellant for murders of Ashok and Rajesh @ Khannu u/s. 302 of the Indian Penal Code and sentenced him to suffer life imprisonment, as also to pay fine of Rs. 5000/- in default to suffer rigorous imprisonment for three years. The appellant was also sentenced for causing grievous hurt with sharp edged weapon to Meerabai, mother of the deceased u/s. 326 of the Indian Penal Code and has been sentenced to two years rigorous imprisonment and to pay fine of Rs. 1000/- in default to suffer rigorous imprisonment for one year. The appellant has also been sentenced u/s. 324 of the Indian Penal code for voluntarily causing hurt with sharp edged weapon to Deokaran, father of the deceased and has been sentenced to suffer rigorous imprisonment for one year, as also to pay fine of Rs. 500/- in dafault to suffer simple imprisonment for six months. The substantive sentences were ordered to run concurrently. The appellant challenges his conviction and sentence in this appeal. 2a. PROSECUTION case, in brief, is that on9-7-1997, at about3. 00 P. M. , the appellant went into the Tailoring shop of the deceased and there he assaulted deceased Ashok with Spear and thereafter, he ran after the deceased Rajesh and assaulted him as well. When Meerabai, mother of the deceased, came to the rescue of Rajesh, the appellant also assaulted her with Spear in the stomach and thereafter, he also assaulted Deokaran, father of the deceased. As a result of the assault, Ashok and Rajesh died and the appellant was put up for trial.
The learned Advocate for the appellant argued before us that though five witnesses have been examined by prosecution, yet none of the said witnesses have seen the entire incident and if the witnesses were present on the spot, it is but natural that they should have seen the entire incident. It is submitted that the statements of eye witnesses are full of contradictions and omissions on material particulars as a result of which implicit reliance cannot be placed on their testimony. It was pointed out that the seizure memo shows that four pointed iron rods were attached but no connection whatsoever is shown in respect of the same which means that prosecution has suppressed the entire facts from the Court. Lastly, it is urged that sentence in default of payment of fine is highly excessive and calls for reduction.

On the other hand, the learned A. P. P. has urged before us that the prosecution case has been fully established with the help of five eye witnesses whose testimony on material particulars could not be shaken. There is no reason whatsoever to discard their testimony. He further pointed out that on the clothes of the appellant and also that of the deceased and Meerabai, blood of O group was found and likewise, on the weapons used by the appellant in the crime also the blood of O group was found, which is the blood group of the deceased and Meerabai. According to him, the trial Court has threadbare discussed eye witness account of the witnesses and after placing reliance, has convicted the appellant, which conviction does not call for any interference.

(3.)PROSECUTION has examined five eye witnesses and as such, we shall deal with their testimonies in the light of the argument advanced by the learned Advocate for appellant and by the learned A. P. P. The incident is reported to have started with the assault on Ashok and the witness who has been examined in this respect is Arvind (P.W.8 ). He has stated that the Tailoring shop of sons of Deokaran namely Ashok and Rajesh is opposite to their residential house and in between the two, there is a road. House of the accused is adjacent to the Tailoring shop of Deokaran and the house of this witness is at a distance of 25ft. from the house of Deokaran. On 9-9-1997, after taking food, he went to the Tailoring shop of the deceased. He saw Ashok stiching clothes on the machine. Rajesh was at the back side room of the said shop. The shop consists of two rooms. He sat with Rajesh in the back side room chit chatting. Rajesh was wearing a banian and lungi. On hearing hue and cry, Rajesh @ Khannu came out of the inner room and went to the first room of the shop. This witness followed him. At that time, he saw accused Sanjay assaulting Ashok with Spear. The Spear was hit on the throat of said Ashok. As soon as Ashok sustained blow of Spear on his throat, bleeding started from the said injury. Khannu @ Rajesh went there and caught hold of accused Sanjay from his back side. After seeing this, P. W. Arvind was afraid and ran towards his house. From his house, he saw Khannu running on the road and accused chased him. He saw accused Sanjay giving one blow of Katta on the head of Khannu. He also saw accused holding Spear in his hand. According to him, he fell giddy and sat down. At the same time, he saw mother of Khannu lying on the road. Mother of Khannu had sustained bleeding injury due to the Spear. He identified the Spear (Article 1) and Katta (Article 8) as the same weapons with which the appellant had assaulted the deceased.
The main attack launched by the learned Advocate for the appellant in respect of this witness is that the statement was recorded by the police after 7 to 8 days of the incident which itself goes to suggest that this witness is got up witness. It is now well settled that mere fact that the statement of a witness has been recorded with a delay, is not sufficient to discard his testimony or to treat it with suspicion unless it is shown that the investigating officer was marking time and he introduced the got up witness. The investigating officer was not cross-examined at all, in this respect. Therefore, merely because the statement of witness was recorded 7 to 8 days after the incident, it is not sufficient to throw overboard his testimony in the Court. In fact, the defence had suggested to this witness that he saw Ashok when Spear was already thrust in his throat and then, in his presence, the accused took out said Spear from his throat. The investigating officer was questioned in this respect and he stated that witness Arvind had stated before him that accused Sanjay had hit with the Spear in his hand on the throat of Ashok. It was also suggested to this witness that the accused was sitting on the ota in front of his house possessing the Spear in his hand. Prosecution has, thus, through the evidence of Arvind, duly established that it was the appellant who had taken out said Spear from his throat and in the circumstances it stands proved that it was the accused who had assaulted Ashok with Spear.