KUNDAN SINGH, J. ( 1 ) THIS appeal has been preferred against the judgment and order dated 13-7-1984 passed by Sri S. C. M. Tripathi, the then lind Addi. Sessions Judge, Shahjahanpur, whereby Ghurai has been convicted under Section 302, I. P. C. and sentenced to imprisonment for life in Sessions Trial No. 507 of 1982. ( 2 ) THE prosecution case, in brief, is that Sewa Ram, Husband of Smt. Shriwati, had died. Jograj brother of Ram Kishan remarried her 10 months before the incident according to Bithaki custom and she started living with him as his wife. The accused who is elder brother of Sewa Ram wanted Smt. Shriwati to live with him as his wife but she turned down that proposal saying that he had already four major children and wife and further that he was her Jeth (elder brother of her husband ). It offended Ghurai, who assaulted her and tried to turn her out of the house several times. He sold her four goats and also did not give any share in the agricultural holding in spite of her demand. Being harassed at the end of Ghurai, she started living with Jograj as his wife. Thereafter Ghurai convened a Panchayat in the village for return of Smt. Shriwati but in the Panchayat she clearly refused to go to the house of Ghurai. Thereupon Ghurai in angry posture told that since it was question of his prestige, he will not allow her to live with Jograj and he wife kill her and Jograj both. However, the son born from the union of Sewa Ram and the utensils were returned to her in the Panchayat. In the night of 9/10-5-1982, Jograj and Smt. Shriwati were sleeping out side their room under a Thatch. The informant Ram Kishan, brother of the deceased, heard shrieks of Shriwati that Ghurai was assaulting her husband. On hearing her shrieks, the informant, Mitthu Lal, Chhotey Lal rushed to the place of incident flashing torches while Ram Swarup, Babu Ram and Raghubir came there challenging the assailant. At that time Ghurai was going with a blood stained gandasa from the Chappar of the deceased and was saying that one of them has already been eliminated and if they tried to chase him that would not be in their interest and fled away through the lane towards north and he could not be apprehended. At that time Ghurai was going with a blood stained gandasa from the Chappar of the deceased and was saying that one of them has already been eliminated and if they tried to chase him that would not be in their interest and fled away through the lane towards north and he could not be apprehended. At the time of incident a kerosene oil dibia was burning in the Chappar. The lady recognised the assailant in the light of that dibiat, while the other witnesses recognised him in the torch light. The witnesses found Jograj lying dead on a cot with numerous injuries on his face, neck, head and scapula. The informant could not go to police station in the night due to fear. In the morning, he got a report written and leaving the dead body in the custody of villagers left to the police station Kalan where he lodged an F. I. R. on 10-5-1982 at 8-30 a. m. , the distance of police station being 5 miles from the place of occurrence: ( 3 ) JAGDISH Gin Goswami, Sub-Inspector (P. W. 5) started investigation of the case. He recorded the statement of Ram Kishan at the police station itself and then proceeded to the place of occurrence. He reached the place of occurrence at about 9. 35 a. m. and found the dead body of Jograj Lying on the spot. He prepared a Panchayatnama and thereafter the dead body was sent to Mortuary for post-mortem examination. He took the blood stained strings of the cot in his custody. He also took in his custody Dan, Pillow and other articles as well as stained and unstained earth from the spot and prepared their recovery memos. He examined the Dibia and found it in order and prepared its supurdginama. The torches of Mitthu Lal, Chhotey Lal and Ram Kishan were inspected and after preparing their supurdgi memos, they were given in the custody of the respective owners. He also inspected the place of occurrence and prepared a site plan. The statement of Mithu Lal and Smt. Shriwati were also recorded under Section 161 Cr. P. C. The accused was searched but he was not traceable. ( 4 ) DR. A. K. Mehrotra conducted the postmortem examination on the dead body of Jograj at 3. 30 p. m. on 11-5-1982 and he found 7 incised wounds on his body. The statement of Mithu Lal and Smt. Shriwati were also recorded under Section 161 Cr. P. C. The accused was searched but he was not traceable. ( 4 ) DR. A. K. Mehrotra conducted the postmortem examination on the dead body of Jograj at 3. 30 p. m. on 11-5-1982 and he found 7 incised wounds on his body. The investigating officer after completing the investigation submitted charge sheet against the appellant. ( 5 ) THE prosecution examined 6 witnesses in all to prove its case. Out of them, P. W. 2 Ram Kishan, PW. 3 Smt. Shriwati and PW. . 4 Mitthu Lal are the witnesses of the factum of incident. P. W. 1 Yogendra Pal Singh constable took the dead body from the place of occurrence to the police station, while- P. W. 5 Jagdish Gin Goswami investigated the case and P. W. 6 Dr. AK. Mehlotra had conducted the post-mortem examination on the dead body. ( 6 ) THE accused denied the prosecution case and pleaded not guilty and stated that he has been falsely implicated in the present case at the instance of Munna Singh. The mother of Munna Singh had contested election of the village Pradhan, which he had opposed. Ram Kishan and Mitthu Lal were his party men and Bataidar. ( 7 ) THE learned Sessions Judge after having gone through the evidence charged and accordingly he convicted and sentenced him as aforesaid. ( 8 ) THE learned counsel for the appellant contended that it is a night incident and Smt. Shriwati, wife of the deceased, was not sleeping in the thatch at the time of incident and that the witnesses had no opportunity to recognised the real culprit. The appellant has been roped in the present case on mere suspicion and out of enmity. ( 9 ) THE learned defence counsel contended that if Smt. Shriwati was present on the spot then her conduct at the time of incident was unnatural. Smt. Shriwati P. W. 3 stated that there were two doors in the Chhappar. The cot of Jograj was lying towards North South, while her cot was in East West direction. The head of Jograj was towards South, while her head was towards West. The cot of Jograj was at a distance of 3 or 4 steps from her cot. At the time when Ghurai entered the Chhappar she was sleeping. The cot of Jograj was lying towards North South, while her cot was in East West direction. The head of Jograj was towards South, while her head was towards West. The cot of Jograj was at a distance of 3 or 4 steps from her cot. At the time when Ghurai entered the Chhappar she was sleeping. She saw Ghurai assaulting the deceased with a gandasa 4 or 5 times. After awakening she got up, shouted and stood up by the side of her cot. Ghurai ran away after assaulting her husband but she kept on raising alarm. However, Ghurai did not assault her nor did he say anything to her. The incident was over within a minute. As soon as Ghurai came out of the Chhappar and was at a distance of about 6 or 7 steps from the Chhappar, the witnesses reached there. The witnesses saw Ghurai running away from the place of occurrence. Ram Kishan had also reached there from the Western side. ( 10 ) THE learned counsel for the appellant argued that the behaviour of Smt. Shriwati at the time of incident was against human conduct which casts a doubt on her presence at the scene of incident at the time of brutal murder of Jograj, who was none else but her husband. According to him, had she been present at the venue at the time of incident either she would have resisted the violence by catching hold of the assailant or she herself also would have assaulted the culprit by any article or weapon whatever was available at hand or she herself would have laid down on the body of Jograj to save his life and in either case she also would have received injury on her person but there was not a single bruise on her body. In support of the above submission he tried to derive help from the observations of the Supreme Court in the case Anil Phukan v. State of Assam, which read as under (Para 5 of Cri LJ): The unnatural conduct of Ajoy P. W. 3 which has come to our notice from the record is that though he was present along with the deceased at the time of occurrence, on March 21, 1976, at about 8. 00 p. m. , he made no attempt to save his uncle from the assault. 00 p. m. , he made no attempt to save his uncle from the assault. He did not even continue to stay there, though, of course according to him, he ran for his life on being advised so by his uncle. He was not assaulted though both he and his uncle were unarmed. Even if Mahendra was engaged in assaulting the deceased, Anil who was also allegedly armed neither made an attempt to assault Ajay P. W. 3 nor even chased him. P. W. 3 Ajay did not himself lodge the F. I. R. ( 11 ) THE learned counsel for the appellant further relied on the observations of the Supreme Court in the case Bhimappa Jinnappa Naganur v. State of Karnataka which read as under (Para 9 of Cr1 LJ): It also appears to us that the behaviour of P. W. 1, wife of the deceased was not natural in the sense that she merely rests by offering water to her deceased husband who was breathing his last. She does not try to nurse him or offer him any other help which would have shown her presence at the time of the death of the deceased at the site of the incident. ( 12 ) IN the present case, the wife of the deceased was only a spectator except screeching at the scene of occurrence, she did nothing. If her statement is taken at its face value that shows that she was actually not present at the scene of occurrence. She did not try to save her husband from the assault being made on his life. Had she been present there, she must have tried to catch hold of the accused or at least she would have laid flat on the dead body in order to save him or she would have assaulted the accused with any danda or other domestic article but her role as a spectator does not appeal to us. In our opinion, the conduct of the lady was nothing but unnatural in the sense that she only watched the incident inertly but did nothing to save the life of her husband. ( 13 ) THE learned counsel for the appellant further contended that the incident did not take place at the time as alleged by the prosecution. In our opinion, the conduct of the lady was nothing but unnatural in the sense that she only watched the incident inertly but did nothing to save the life of her husband. ( 13 ) THE learned counsel for the appellant further contended that the incident did not take place at the time as alleged by the prosecution. He pointed out from the post-mortem examination report and the statement of the doctor, who conducted the post-mortem examination, that he found 200 gms. undigested food material in the stomach and the digestion had not yet started. The learned counsel also pointed out from the statement of Smt. Shriwati (P. W. 3) that usual time of taking the dinner was after sun set and burning of Deepaks and on the day of incident also, both Jograj and she (Smt. Shriwati) took their meals at the same time when Deepak was lighted after sun set. On the day of incident the sun set at about 6. 30 p. m. Thus the deceased must have taken his meal between 6. 30 and 7. 00 p. m. According to the learned counsel for the appellant digestion process starts within few minutes after taking of meal. The food material takes seven hours to pass from the stomach. According to the defence counsel the deceased died within few minutes of his taking the meal. In case the food was eaten at 6. 30 or 7. 00 p. m. , the digestion process would have started within few minutes. In that case the incident would not have taken place at 12. 00 or 1. 00 a. m. By that time the digestion process must have started and some digested food material must have been present in the stomach. In this connection the learned counsel for the appellant also relied upon the observations of Supreme Court in the case Shambhoo Missir v. State of Bihar, which are extracted below (Para 3 of Crl LJ): The substance of the prosecution case is that the deceased Rajendra died as a result of the assault in question at about 3. 00 p. m. on the very day of the incident. However, on the basis of the medical evidence, the defence has succeeded in establishing that he had died soon after he left his house at 8. 00 a. m. Dr. 00 p. m. on the very day of the incident. However, on the basis of the medical evidence, the defence has succeeded in establishing that he had died soon after he left his house at 8. 00 a. m. Dr. Shambhoo Sharan (P. W. 13) who performed the post-mortem examination of the dead body, has stated both in his. report as well as in his deposition, that there was 8 ounces of undigested food in the stomach of the deceased. If as alleged by the prosecution the death had occurred at 3. 00 p. m. , no such undigested food would have been found in the stomach at that hour when the food was taken by the deceased before 8. 00 a. m. If this is so, then the whole case of the prosecution must crumble. For this will establish beyond doubt that Rajendra had died very soon after 8. 00 a. m. and none of the so called eye-witnesses had seen assault on Rajendra. The said fact will also demolish the entire version of the three dying declarations made by the deceased to various prosecution witnesses at three different places. The non-explanation by the prosecution of the undigested food therefore casts serious adverse reflections on the entire investigation in the present case. Unfortunately, the High Court has failed to deal with this very important aspect of the evidence on record which has been highlighted by the trial court. It also strengthens the defence version that the accused have been involved in the present case by the obliging witnesses and unfair investigation The learned counsel for the appellant further drew our attention to the following observations of Supreme Court in the case Bhimappa Jin nappa Naganur v. State of Karnataka Case (supra) (Para 8) If we take the statement of P. W. 1 for its face value the deceased died within a couple of minutes of his coming out of the court of minute of his coming out of the court yard after finishing his mid-day meal. It is clear from the post-mortem report as well as the statement of doctor P. W. 6 that the deceased could not have consumed his lunch at the time as stated by P. W. 1. In other words the incident must have been of period much before the time as alleged by the prosecution. It is clear from the post-mortem report as well as the statement of doctor P. W. 6 that the deceased could not have consumed his lunch at the time as stated by P. W. 1. In other words the incident must have been of period much before the time as alleged by the prosecution. ( 14 ) FROM the above observation of the Supreme Court, it appears that the deceased when the witnesses reached deceased took food and semi-digested food was found at the time of postmortem examination and the deceased was said to have died much later as stated by the prosecution. But from the medical examination it is clear that the deceased must have died soon after taking his meal. Similarly in this case the deceased is said to have taken his meal between 6. 30 and 7. 00 p. m. and all the food material in quantity of 200 gms. was found undigested in the stomach and the digestion process had not started which means that the death of the deceased had occurred within few minutes of taking the meal and not at 12. 00 in the right or thereafter as alleged by the prosecution. ( 15 ) ACCORDING to the prosecution P. W. 2 Ram Kishan reached the place of occurrence from his house which was in the West, while other witness came from the Northern side. Wife of the deceased was crying that her husband has been killed by Ghurai. Had it been so the witnesses would have come armed with some weapon like lathi, spear etc. and not only with the torches but none of them had any weapon to save the deceased. The record shows that the witness had comes on the spot only to witness the incident and recognize the assailant and not to save the victim. After all the accused was armed with a gandasa and not with any fire arm and therefore he could be chased and overpowered by the witness with small dandas etc. However it is strange that none of them made any attempt to arrest the accused or to save the victim. That behaviour of the witness was absolutely queer and against human conduct. However it is strange that none of them made any attempt to arrest the accused or to save the victim. That behaviour of the witness was absolutely queer and against human conduct. Even if it assumed for a moment that Smt, Shriwati screamed when the assault was made then many persons must have assembled on the spot and any of them or at least the village Chaukidar could go to lodge the F. I. R. in the night itself especially when on the own showing of the prosecution the accused was not a bad character and there was no abuse for any fear or affrightment in going to the police station in the night for lodging the F. I. R. The explanation that the F. I. R. could not be lodged due to night and fear of the accused is far from satisfactory. According to the witness the accused had already traversed 7 or 8 steps from the Chhappar of the deceased when the witnesses reached there. The wife of the deceased woke up after some Gandasa blows had already been given to the deceased. The possibility that the deceased was assaulted some time after 6. 30 or 7. 00 p. m. when his wife was not present and that the later on she cane at mid-night in the house when the detected that her husband jams been killed by somebody. cannot be ruled out. Various persons had collected on the spot and it seen that after deliberation and consolations the first information report was lodged in the morning next day and that being so we are afraid to place any reliance on the testimony of the witnesses whose statement were inconsistent to the medical evidence. Further their had made no attempt to save the life of the deceased or to arrest the accused. ( 16 ) SO far as motive part is concerned both the deceased and Smt. Shriwati were the center of target of appellant Ghurai. Had Smt. Shriwati been present at the venue as alleged by prosecution she would also have visited with the same fate which Jograj had met whereas she had not received single injury at the hands of the accused though except her husband, she alone was the person present on the spot from beginning to end of the incident. Had Smt. Shriwati been present at the venue as alleged by prosecution she would also have visited with the same fate which Jograj had met whereas she had not received single injury at the hands of the accused though except her husband, she alone was the person present on the spot from beginning to end of the incident. We have closely examined and discussed the prosecution evidence and have expressed our serious doubts about the presence of the witnesses on the spot at the time, of incident. In our opinion, the prosecution has not been able to bring home guilt against the appellant beyond reasonable shadow of doubt and consequently he has to be extended the benefit of doubt. ( 17 ) ACCORDINGLY, the appeal succeeds and is allowed. The appellant is given benefit of doubt and his conviction and sentence as returned by the learned Sessions Judge are set aside and he is acquitted of the charges levelled against him. He is on bail. He need not surrender. His bail bond is cancelled and sureties are discharged. Appeal allowed. .