PALOK BASU, J. ( 1 ) DEBI Din, son of Govind Dass, Bhagirath, Preru, Madan Pal, Debi Din alias Debiya (hereinafter referred to as Debiya) and Sunder were prosecuted by the police of police station Rath, district Hamirpur for having committed murder of Ram Nath in the afternoon of 28-9-1975. ( 2 ) SUNDAR accused having absconded during the trial his case was separated and only the five remaining accused were tried in Sessions Trial No. 220-A of 1975 and each of them has been convicted u/s. 302/149, IPC and sentenced to imprisonment for life with the additional conviction and sentence of Debi Din, Bhagirath, Madan Pal and Debiya u/ S, 148 ,ipc to one years R. I. and appellant Pheru u/s. 147, IPC to six months R. I. by thc Additional Sessions Judge, Hamirpur on 10-1-1979. Aggrieved, they have preferred this appeal. ( 3 ) IT may further be relevant to add here that the appellant Debi Din, son of Govind Dass was said to have died during the pendency of the appeal, consequently a report was called from the Chief Judicial Magistrate, Hamirpur Who has submitted his report dated 17-1-1979 certifying that the said appellant is dead in the police encounter. Consequently his appeal abates. ( 4 ) ACCORDING to the prosecution story accused Debi Din and Bhagirath are brothers and accused Sunder was in the employment of Debi Din. Accused Debiya and Madan Pal are also brothers. Accused Pheru is related to them. Ram Nath deceased was father of P. W. 4 Mangal, the informant. About a year ago Debi Din, Bhagirath and one Chhamaiya were prosecuted for the murder of one Jagannath, brother of Ram Nath deceased and uncle of P. W. 3 Brikh Bhan. Ram Nath was doing Pairvi on behalf of his dead brothers family in the said case. That was the motive. On 28-9-1975 in the afternoon Ram Nath was going to his field carrying fodder along with P. W. 4 Mangal carrying Roti for labours and P. W. 3 Brikhbhan, nephew carrying water in a pitcher. When they reached mango trees in the field of Gajraj known as Molaha Bagicha accused Sundar with S. B. B. L. gun, Debi Din with D. B. B. L. gun Bhagirath with S. B. B. L. gun, Madan Pal with axe, Debiya with Pharsa, Pheru with lathi were present. When they reached mango trees in the field of Gajraj known as Molaha Bagicha accused Sundar with S. B. B. L. gun, Debi Din with D. B. B. L. gun Bhagirath with S. B. B. L. gun, Madan Pal with axe, Debiya with Pharsa, Pheru with lathi were present. Sundar challenged and fired at Ram Nath and then Bhagirath and Debi Din fired at him. These two child witnesses raised hue and cry attracting Nathu and Hindupat who were sitting under the mango trees of Gajraj Lodhi in the close vicinity. Before such firing, Madan Pal caught hold of Brikhbhan and Debiya caught hold of Mangal and then Bhagirath and Debi Din fired. Brikhbhan has stated that when Sundar challenged, he and Mangal started crying which attracted the attention of the other two witnesses Natthu and Hindupat and Sundar at once fired at Ram Nath. Ram Nath having thrown the basket of fodder, ran towards the mango trees of Gajraj Lodhi and then the said two persons Brikhbhan and Mangal were caught soli of by the said accused persons. Then Bhagirath and Debi Din fired at and Ram Nath fell down in the ploughed field of Gajraj Lodhi. Then they stated that they were released from the hold of the said two accused persons and the accused persons went to the place where Ram Nath was lying and cut away his right hand, penis and neck and having taken off his clothes, ran away towards the village Tikariya. The fodder carried by Ram Nath was scattered in the field and human dung was also found at the place of occurrence. Mangal, Brikhbhan, Natthu and Hindupat reached near Ram Nath and found that he was lying dead, his right hand was missing, his neck was cut and his penis was also missing. Mangal went to the police station Rath which was about eight miles away from the place of occurrence and lodged an oral First Information Report at 5-15 p. m. on 28-9-1975. ( 5 ) THE primary charge against the appellants was that on 28-9-1975 in the afternoon five appellants had formed an unlawful assembly with the common object of committing, the murder of Ram Nath, son of Ghasi Ram of village Para and, therefore, they committed offence punishable under S. 302 read with S. 149, IPC. ( 5 ) THE primary charge against the appellants was that on 28-9-1975 in the afternoon five appellants had formed an unlawful assembly with the common object of committing, the murder of Ram Nath, son of Ghasi Ram of village Para and, therefore, they committed offence punishable under S. 302 read with S. 149, IPC. Debi Din being armed with D. B. B. L. gun Bhagirath having S. B. B. L. gun, Malan Pal having axe and Debiya having pharasa were also charged u/s. 148, IPC whereas Pheru having lathi with him was charged u/s. 147, IPC. ( 6 ) SRI G. S. Chaturvedi, learned counsel for the appellants and Sri R. C. Deepak, learned A. G. A. have been heard at length and the entire record was perused thoroughly, During the course of arguments an application was moved on behalf of the appellants that the Medical Expert who had conducted the post mortem examination on the dead body of Ram Nath, namely, P. W. 5 Dr. H. C. Pandey be summoned for further cross-examination. After hearing the parties that application was allowed, Dr. Pandey appeared as Court witness on 5-8-1991 and he was further cross-examined by Sri Chaturvedi on behalf of the appellants. Few questions were also put by the Court: ( 7 ) ALL the appellants had denied their participation who pleaded not guilty and attributed their false implication due to enmity and suspicion. They have examined two witnesses, D. W. 1 Shiv Ratan Lal, Record Keeper, in the Collectorate, Hamirpur and D. W. 2 Santosh Kumar Lakpal of village Para. The reference about their evidence will be made at the relevant stage. ( 8 ) THE prosecution case rests upon the eye-witnesses testimony furnished by P. W. 1 Natthu, P. W. 2 Hindupat P. W. 3 Brikhbhan and P. W. 4 Mangal who happens to be the informant. P. W. 6 Swami Dayal is the Head Constable who has stated that on 28-9-1975. He had taken down oral report dictated by Mangal he had prepared a Chick report marked Ext. Ka-1 and had made the corresponding entry in the general diary No. 30, true copy of which were Exts. Ka 2 and Ext. Ka 3 respectively. P. W. 6 Swami Dayal is the Head Constable who has stated that on 28-9-1975. He had taken down oral report dictated by Mangal he had prepared a Chick report marked Ext. Ka-1 and had made the corresponding entry in the general diary No. 30, true copy of which were Exts. Ka 2 and Ext. Ka 3 respectively. P. W. 8 Sri Dhar Awasthi is the Investigating Officer of the case who has said that the First information Report was lodged in his presence at the police station Rath at 5-15 p. m. on 28-9-1975. He had deputed two constables to go to the spot at once and himself took statement of Mangal and then proceeded for the place of occurrence at 7-15 p. m. along with R. K. Pandey, Sub Inspector and Shiv Nayak Singh, constable. He reached the place of occurrence at 7-45 p. m. and found the dead body of Ram Nath in the field of Gajraj. He also met the two eye-witnesses of the incident, namely, P. W. 1, Natthu and P. W. 2, Hindupat and thereafter he completed the formality of inquest report which was proved as Ext. Ka 23. Then he dispatched the dead body for post mortem examination through constable Shiv Nayak Singh and proved the photo Nath and Challan Nash Exts. Ka 24 and Ext. Ka 25 respectively. He also proved the preparation of memo relating to the recovery of bloodstained and plain earth from the place of occurrence marked Ext. Ka 26. Because of paucity of light and night hours no further investigation was undertaken that day. On the next day he examined Brikhbhan and other witnesses and prepared the site plan of the spot and proved it as Ext. Ka 27. Thereafter he came to know of the accused having surrendered before the court and, therefore, recorded their statements in Hamirpur Jail and thus having completed the investigation he filed a charge-sheet on 19-11-1975 which was proved as Ext. Ka 28. ( 9 ) AS stated above, there is no numerical dearth of the eye witnesses in the instant case but a preliminary point which was raised may be taken up for decision at the outset. As mentioned above, this Court had allowed an application on behalf of the appellants for further cross-examining the doctor who had conducted the post mortem examination. As mentioned above, this Court had allowed an application on behalf of the appellants for further cross-examining the doctor who had conducted the post mortem examination. It was sought to be argued by the learned counsel for the appellants that greenish dis-colouration over some parts of the body can not co-exist with presence of blisters and skin peeling off at some other parts of the body. He further emphasized that the opinion of the Medical Expert that the time since death was from 12 hours to 36 hours is too expansive to have an accurate estimate of the time of the ante-mortem injuries. It was further emphasised that in the examination of the said P. W. 5 Dr. H. C. Pandey this position was not touched and, therefore, opportunity to further cross-examine him should be afforded. ( 10 ) IN his statement in this Court Dr. Pandey has said as under:-"i have written in the post mortem report that the blisters present and skin peeling off at places. The blisters and bullae are same connotation of the change in the skin of the deceased. I agree with the opinion of Modi that on an average the blisters may be present within 48 hours. However, I would like to add that in Summers blisters may occur within or about 36 hours of the death. In this case the date of post-mortem examination is 29-9-l975. By saying that the time since death was "from 12 hours to 38 hours" I meant that the deceased must have died prior to 12 hours and not later than 36 hours of the time of post mortem examination, i. e. 8-30 a. m. on 29-9-l975. It is wrong to say that in the instant case the death must have taken place beyond 36 hours earlier. The reason is that neither the hair of the deceased nor the nails of the deceased were leaving the site nor had become loose. From this I conclude that the deceased must have died within 36 hours before the post mortem examination. It is possible that the injuries sustained by Ram Nath may have been caused in the early hours of 28-9-1975 because that may be within 36 hours as has already, been noted by me in the post mortem report. From this I conclude that the deceased must have died within 36 hours before the post mortem examination. It is possible that the injuries sustained by Ram Nath may have been caused in the early hours of 28-9-1975 because that may be within 36 hours as has already, been noted by me in the post mortem report. " ( 11 ) IN order to get further clarification of his opinion some questions were put by their Court which was answered as under:-"the injuries themselves were indicative that the deceased has suffered haemorrhage and then shock and, therefore, he died of shock and haemorrhage emerging from out of the injuries. ( 12 ) IT may be possible in some cases, though not generally, to find two greenish discolouration alone with blisters along with peeling off skin. ( 13 ) IT is not possible for me to pin point the exact time so as to reduce the margins of "time since death" as noted 12 hours to 36 hours. ( 14 ) WHAT has been quoted above is in fact the entire statement made by Dr. Pandey in this Court. He is emphatic on his statement that the three things, i. e. greenish discolouration alone with blisters, along with skins peeling off can co-exist. It is this part of the Experts opinion which was been sought to be challenged by the learned counsel for the appellants. It is well known that in Northern India especially during the net months from April to October, putrefaction commences before rigor mortis has completely passed off from the lower extremities. According to Modi,"the first external evidence of putrefaction in a body exposed to the air is the formation of greenish discoloration of the abdominal skin over the iliac fossae and internally seen on the under surface of the liver. This disclolouration is due to the conversion of haemoglobin of the blood pigment into sulphmet haemoglobin by the action of sulphuretted hydrogen diffusing from the intestine into the tissues, and occurs from one to three days after death in winter, and six to twelve hours in summer. " ( 15 ) FROM twelve to eighteen hours after death in summer the green colouration spreads over the entire abdomen and the external genitals. Green patches also make their appearance successively on the chest, neck face, arms and legs. " ( 15 ) FROM twelve to eighteen hours after death in summer the green colouration spreads over the entire abdomen and the external genitals. Green patches also make their appearance successively on the chest, neck face, arms and legs. These patches gradually deepen in colour, and later become purple and dark blue. They are at first separate and distinct, but later on coalease together, and the whole skin of the body appears discoloured. " It is thus apparent that because of so many chemical reactions taking place inside the dead body, various outwardly signs become apparent. From 18 to 36 hours after death the gases collect in the tissues, cavities and nollow viscera under considerable pressure with the result that the features become bloated and distorted. This results in eyes coming out of the sockets, the tongue is protruded between the teeth, and the lips get swollen and everted. The abdomen gets distended and at times the stomach contents are forced into the mouth and larynx may come out from mouth and nostrils. ( 16 ) OWING to the formation of these gases under the skin blisters containing a reddish coloured fluid form on the various parts of the body. When these bursts, the cuticle being softened, peels off easily. If more time passes saying about 24 hours from death, maggots are born at places in the dead-body as the flies and insects lay their eggs in them which natch normally between 8 and 24 hours. ( 17 ) IF about 48 to 72 hours pass from the time of death, generally hair and the nails of the deadbody become loose and they get detached. ( 18 ) IT has been noted by modi that due to varying climatic conditions in our country, which is a vast one, it is impossible to give the exact time when the putrefactive processes develop in a dead body. In the discussion contained in chapter putrefaction or Decomposition Modi has laid great emphasis all through his discussion on putrefying process in Summar days. To put it in common mans language the discolouration taking place after death is invariably replaced by blisters which is again gradually replaced by peeling off skin. In the discussion contained in chapter putrefaction or Decomposition Modi has laid great emphasis all through his discussion on putrefying process in Summar days. To put it in common mans language the discolouration taking place after death is invariably replaced by blisters which is again gradually replaced by peeling off skin. The latter two reactions may be simultaneous because making and bursting of blisters may itself be the cause of skins peeing off and similarly while discolouration may not have been completely removed by the internal process the outwardly changes may take place in parts. ( 19 ) KEEPING in view the aforesaid discussion on this aspect of the matter the most that can be said is that no exception can be taken to the plea of Dr. Pandey in the instant case that the time of death was between 12 and 36 hours. He has justified his aforesaid opinion in the post mortem report by saying that 12 hours could be due to the existence of discolouration and 36 hours could be due to existence of blisters and skins peeling off. In spite of further cross-examination by the learned counsel for the appellants nothing could be elicited to discredit the testimony of Dr. Pandey or to shatter his aforesaid opinion. The conclusion, therefore, is that Ram Nath had died between 12 hours and 36 hours earlier than 8-30 a. m. of 29-9-1975 when the post mortem examination on his dead-body was conducted. ( 20 ) ALL said and done in this regard, the argument before this Court of Sri Chaturvedi was that the deceased Ram Nath may have been done to death in the early hours of 29-9-l975. To the similar effect appears to be the suggestion on behalf of the defence during the trial. Consequently, the suggestion also would indicate that as if not 36 hours had elapsed from the time of death of Ram Nath and the time of his postmortem examination. Therefore, from this point of view also the estimate given by Dr. Pandey does not in any way go against the realm of suggestions thrown on behalf of the defence. It is a different matter as to whether those suggestions are accepted or not, the opinion of the medical expert Dr. Pandey appears to be scientifically correct and can be safely relied upon. Pandey does not in any way go against the realm of suggestions thrown on behalf of the defence. It is a different matter as to whether those suggestions are accepted or not, the opinion of the medical expert Dr. Pandey appears to be scientifically correct and can be safely relied upon. ( 21 ) THEREFORE, it must be held that the prosecution case as regards the duration of ante-mortem injuries would not go contrary to what the prosecution case about the manner of the assault is. This would now take us to the discussion of four eye witnesses examined by the prosecution. The learned trial Judge has placed implicit reliance on four eye-witnesses and has further held that the presence of all of them was probable at the place of occurrence and the incident having been committed in broad day light, there was no possibility of false implication by reason of enmity alone and, therefore, held all the appellants guilty, P. W. 4 Mangal was aged about 10-11-years and P. W. 3, Brikhbhan was aged about 16 years when their statements were recorded by the learned trial Judge. From the questions put to P. W. 3 Brikhbhan it is apparent that he was a competent witness and was able to give rational answer to the questions put to him. The examination-in-chief of P. W. 3 Brikhbhan appears to have been written in the form of questions and answers indicating that there was no possibility of any tutoring to him either. Both these witnesses have been cross-examined at great length during the trial on behalf of the accused appellants. Both of them have said that near about noon they were going to their agricultural plot along with Ram Nath deceased who was carrying a basket of fodder. When they reached near Molaha Bagicha Sundar and Bhagirath armed with guns, Debi Din armed with D. B. B. L. gun, Madanpal with an axe, Debiya with Pharsa and Pheru with lathi arrived, Sundar challenged and fired at Ramnath, followed by firings of Bhagirath and Debi Din. They all shouted, attracting P. W. 1 Natthu and P. W. 2 Hindupat who were sitting under the mango tree of Gajraj Lodhi in the nearby field. Mananpal had held Brikhbhan while Debiya had held Mangal immediately after firing at Ramnath. They all shouted, attracting P. W. 1 Natthu and P. W. 2 Hindupat who were sitting under the mango tree of Gajraj Lodhi in the nearby field. Mananpal had held Brikhbhan while Debiya had held Mangal immediately after firing at Ramnath. Ramnath had thrown the basket of fodder and ran toward the mango tree of Gajraj Lodhi when Bhagiraths and Debi Dins firings fell Ramnath in the ploughed field of Gajraj Lodhi. All the accused went to Ramnath who was lying, cut his right hand, neck and penis and ran away with clothes of the deceased after having cut several parts of his body and severed the neck. It was argued that there was some contradiction as to the manner and timing when the clothes of the deceased were taken out by the accused. It is said that in the FIR the parts of the body of the deceased were cut first and then the clothes were taken off but in his statement he has said that the clothes were taken off first and then parts of the body of Ramnath were cut, In fact, the criticism is not accurate. The FIR did not contain the complete details step by step and contained the cumulative result of what the child had seen. Consequently, when he has narrated the details step by step succinctly, there does not appear to be any contradiction whatsoever, Similarly the argument that the statement in court is contrary to the statement recorded u/s. 161 Cr. P. C. , is also rejected. The other argument advanced was that Pheru was said to have given lathi blow to the deceased but there was no typical lathi injury on deceased Ramnath and, therefore, this witness is contradicted. This argument is equally devoid of any merit. Injury No. 12 may have been the result of a lathi injury also. As noted above, the statement was recorded by the Investigating Officer at the police station immediately after lodging of the FIR consequently, there is no reason to disbelieve this child witness whose deposition inspires confidence. This argument is equally devoid of any merit. Injury No. 12 may have been the result of a lathi injury also. As noted above, the statement was recorded by the Investigating Officer at the police station immediately after lodging of the FIR consequently, there is no reason to disbelieve this child witness whose deposition inspires confidence. ( 22 ) P. W. 3 Brikhbhan was sought to be criticized on the ground that he had said in the examination-in-chief, that immediately after exhortation by Sundar he was caught by Madanpal and Mangal was caught by Debiya and then he stated that Sundar Fired which will be contrary to what the statement of this witness and that of Mangal are made to appear later on. In fact, this is not so. On this aspect the witness was cross examined wherein he had stated that he and Mangal were caught by those two accused after one round had been fired by Sundar. He expressed his inability to remember if he has said otherwise in the examination-in-chief. The learned trial Judge has rightly held this to be a slip of tongue having been justifiably explained in the rest of the statement. No further factor has been brought out which may discredit this witness. ( 23 ) COMING to the other two eye-witnesses, namely, P. W. 1, Natthu and P. W. 2 Hindupat, both of them were sitting very close to the place of occurrence below the mango tree of Gajraj Lodhi and taking rest. They have narrated in detail the entire prosecution story noted above. P. W. 1 Natthu and P. W. 2 Hindupat are inter se nephew and uncle remotely. They had a litigation about a Chak that existed in village Para. The litigation had allegedly come up to this Court then. His family house is in village-Para and in cross examination he gave complete detail of it. This fact was not challenged further in the cross-examination nor the boundaries were shown nor suggested as having been wrongly given. Therefore, P. W. 1 Natthu is the original resident of the village of incident i. e. village Para and has got his agricultural land including Chak No. 57. His father of course, has some other land in village Vehuni but this does not make his presence at the time of the incident doubtful in any manner whatsoever. Therefore, P. W. 1 Natthu is the original resident of the village of incident i. e. village Para and has got his agricultural land including Chak No. 57. His father of course, has some other land in village Vehuni but this does not make his presence at the time of the incident doubtful in any manner whatsoever. In this connection D. W. 2 Santosh Kumar, Lekhpal of village Para has said that P. W. 1 Natthu had a Chak No. 57 in village-para and another Chak No. 182 adjoins this chak and there is a grove also adjoining one Chak. It is apparent, therefore, that there is nothing in the statement of P. W. 1 Natthu which may have been shown wrong by the statement of D. W. 2 Sundar. ( 24 ) P. W. 2 Hindupat has stated that he was going from his field known as Dhele Wala field to Kaawar Wala field which are situated at a distance of two furlongs from each other. The only cross-examination appears to lengthen the distance off our furlongs. Therefore, there is no challenge to the existence of two plots of P. W. 2 Hindupat near about the place of occurrence. He has also said just as P. W. 1 Natthu, to have come below the mango tree of Gajraj Lodhi to take some rest. In the burning sun in hot after noon of 28/09/1975 taking rest below a mango tree was neither unnatural for a villager nor unexpected particularly when he had his field just about the place of occurrence. ( 25 ) THERE is no enmity whatsoever between P. W. 1 Natthu and P. W. 2 Hindupat on the one hand and any of the appellants on the other. Neither from the documents filed by the accused during the trial nor from suggestions extended to these two witnesses nor any of the arguments advanced on behalf of the appellants, does it appear that there is any reason for these witnesses deposing falsely against the appellants or to side falsely with the deceased Ramnath. Under the circumstances the trial Judge was absolutely right in placing implicit reliance on the testimony of these two witnesses also. As stated above, the five defence papers relate to insignificant matters which have been rightly held by the trial Judge as not touching any of the points on merits involved in the present case. Under the circumstances the trial Judge was absolutely right in placing implicit reliance on the testimony of these two witnesses also. As stated above, the five defence papers relate to insignificant matters which have been rightly held by the trial Judge as not touching any of the points on merits involved in the present case. ( 26 ) IT is, therefore to be held that the prosecution has successfully proved the charges framed against the accused appellants. However, by way of abundant caution benefit of doubt may extend to Pheru who is said to have held a lathi because injury No. 12 may or may not be a lathi injury. He is entitled to the benefit of doubt. ( 27 ) IN view of the aforesaid discussion this appeal by Bhagirath, Madanpal and Debi Din alias Debiya has to be dismissed. The charge framed against them are fully proved and their convictions and sentences awarded by the trial Judge are upheld. They are on bail. They will surrender to their bail bonds to serve out the sentences awarded by the trial Judge. ( 28 ) THE appeal of Debi Din, son of Govind Das has abated. ( 29 ) THE appeal of Pheru, son of Ram Charan is allowed. He is acquitted of the charges under Ss. 147, 302/149, IPC. He is on bail, he need not surrender and his bail bonds are discharged. Order accordingly. .