S. B. SINHA, J.

( 1 ) THIS Jail Appeal by appellants Chetu and Lalu, sons of Chintu, is directed against a judgment and order dated 23. 3. 2006 passed by a Division bench of the Madhya Pradesh High Court whereby and whereunder an appeal preferred against the judgment of conviction and sentence dated 19. 9. 1997 passed by the First Additional Sessions Judge, Ashok Nagar, district Guna convicting them as also their father Chintu under Section 302 and 342 of the Indian Penal Code and sentencing them to undergo imprisonment for life and a fine of Rs. 3,000/-, was affirmed.

( 2 ) THE deceased Godha was father of Prakash (PW3 ). The accused chintu was his uncle. The prosecution case in brief is that when the complainant Prakash came back to his house from Ashok Nagar, an altercation took place between Godha (the deceased) on the one hand and Chintu, Chetu and Lalu on the other. Chintu was armed with an axe and the appellants herein were armed with lathis. They began to assault Godha. They put him in a room and locked him from outside. The portion of the house in which Prakash and his father were living was set on fire by Chintu as a result whereof the house was burnt. On enquiry from Jot Singh (PW11) and Navela (PW7), alfo (PW8) wife of Chintu disclosed that he had been put inside the room.

( 3 ) THE First Information was lodged by Prakash on 29. 9. 1991 before the assistant Sub-Inspector, Ashok Nagar Police Station. On the basis of the said purported information, the said Shri Mahesh Singh Shukla (PW12)procured the key from the wife of Chintu and recovered the dead body. On completion of the investigation, a charge sheet was filed. The case was committed to the Court of Sessions. Whereas the charges framed against accused No. 1 were under sections 436/302 and 342 of the Indian Penal Code, the charges framed against accused Nos. 2 and 3 were under Sections436/34/302 and 342 of the indian Penal Code.

( 4 ) THE prosecution, in support of its case, examined 12 witnesses. All material witnesses including the first informant - Prakash turned hostile. His sister Lakshmibai was examined as a defence witness.

( 5 ) THE learned Sessions Judge principally relying on the evidence of lalliram (PW5) and Natha (PW6), and the other materials brought on record by the prosecution including the evidence of Dr. Natwar Singh (PW9) and the Investigating Officer (PW12) recorded a judgment of conviction and sentence.

( 6 ) AN appeal preferred thereagainst has been dismissed by the High court by reason of the impugned judgment, inter alia, opining :

"from the evidence on record, it is clear that the deceased sustained several injuries with deadly weapon. Due to these injuries, some of them were fatal, he died in the night before any medical aid. It also appears that the body was recovered from the room of appellants and its key was in the possession of Alphobai, wife of appellant Chintu. According to postmortem report, 19 injuries were found on the deceased. "

( 7 ) AS regards the witnesses who were declared hostile including PW3 and the panch witnesses being Hartoom Singh (PW1), Rumal Singh (PW2)and Bribhan Singh (PW4) as also Alfobai (PW8), Prakash (PW3) and Jot singh (PW11), it was held :

"regarding hostile witness it is settled law that in case of hostile witness the whole testimony cannot be discarded and we can gather truth out of false. Deceased and appellants were closely related with complainant Prakash and his sister Laxmibai (DW1) who was residing with appellant Chintu. Therefore, due to natural love and affection they did not come with open mouth. Considering the ocular evidence available in the case and supported by medical evidence and looking to the circumstances of the case, we have no doubt in our mind that on the date of incident appellants inflicted injuries to the deceased by deadly weapons and injuries were fatal which caused the death of Godha (deceased ). "

( 8 ) THE High Court held that it was a clear case of murder which came within th