Judgment J. R. CHOPRA, J, J. ( 1 ) THIS appeal is directed against the Judgment of the learned Sessions Judge sirohi dated 7-8-1984 whereby the learned Sessions Judge has held the accused-appellants Bhansingh, Jaisingh and Chhailsingh guilty of the offence under Ss. 302/34, I. P. C. and has sentenced them to rigor ous imprisonment for life together with a fine of Rs. 500. 00 and in default to payment of fine, to further undergo rigorous imprisonment for six months. ( 2 ) THE facts necessary to be noticed, for the disposal of this appeal briefly stated are : that Vihansingh, Mangalsingh, Jawaharsingh. Modsingh and Devisingh are the real brothers. Vishansingh is from the first wife of Savsingh whereas Mangalsingh, Jawaharsingh, Modsingh and Devisingh are from the second wife of Savsingh. The accused-appell ants Bhansingh, Jaisingh and Chhailsingh are the sons of Vishansingh. It is alleged that there was a dispute about land between Vishansingh and his sons on the one side and Mangalsingh, Jawaharsingh Modsingh and Devisingh on the other side. Ransingh was the real uncle of Vishansingh, Mangalsingh, Jawaharsingh, Modsingh and Devisingh. Ramsingh and Jawaharsingh did not marry and Mangalsingh had no son and, therefore, he adopted Dalpatsingh as his son. Dalpatsingh was the son of Modsingh. ( 3 ) IT is alleged that about a month before the incident, a fight took place between the accused appellants Bhansingh, Jaisingh and Chhailsingh on the one side and Mangalsingh and his brothers and his other brothers except Vishansingh on the other side. A Panchayat took place at the house of Aamji. It is further alleged that the accused appellants threatened that either they will have to give their heads or they will have to take the heads of com plainant party, if 1/3rd share in the crop and land is not given to them. The complainant party refused to give 1/3rd share in the land and crop but it was suggested to them to take 1/5th share in the land and the crop. ( 4 ) IT is further alleged that on the night interven ing between 9-6-1981 and 10-6-1981 the accused appellants Bhansingh, Jaisingh and Chhailsingh first went to the house of Mangalsingh and found that Mangalsingh was urinating outside his house. They killed him. Thereafter, they went to Bhadarwa Jav and there also, they killed Dalpatsingh and Ransingh, who were sleeping there. They killed him. Thereafter, they went to Bhadarwa Jav and there also, they killed Dalpatsingh and Ransingh, who were sleeping there. According to the prosecu tion story, accused Jaisingh also used to sleep in that very Jav because they had cultivated Rijaga fodder crop jointly. In the morning, P. W. 9 Modsingh and P. W. 15 Devising went to P. W. 11 Gangasingh to inform the police about this incident. On this it is alleged that P. W. 11 Gangasingh went to the Police Station and lodged the report Ex. P. 4, which was recorded in the Rapat Roznamcha and on the basis of that report, a formal FIR Ex. P. 20 was drawn by P. W. 19 Vikramsingh. ( 5 ) THEREAFTER, it is alleged that P. W. 19 Circle Officer Vikramsingh started the investigation and took the Doctor and Photographer with him. The Photographer took the photographs Ex. P. 6 to 19 of all three dead bodies. P. W. 13 Dr. D. K. Barmera conducted the postmortem examination of all the three dead bodies. The postmortem reports of Mangalsingh, Dalpatsingh and Ransingh are Ex. Ps. 31, 32 and 33 respectively. The State inspection memo of Mangalsinghs house was prepared, which has been marked as Ex. P. 36 and the site inspection memo of Bhadarva Jav was also prepared, which has been marked as Ex. P3. The accused-persons were arrested on 15-6-1981. Thereafter, on the basis of the information given by accused Chhailsingh, one sword was recovered vide Memo Ex. P. 41. The site plan of the place where this sword was recovered at the instance of accused Chhailsingh was prepared, which has been marked as Ex. P. 42. On the basis of the information given by accused Chhailsingh, his blood stained clothes were recovered by the Police vide Memo Ex. P. 44. The Panchnamas Lash of Mangalsingh, Dalpatsingh and Ransingh were prepared and they have been marked as Ex. P. 23, 25 and 26 respectively. The blood-stained Dhoti of deceased Mangalsingh was also recovered vide Memo Ex. P. 27 and the blood stained clothes of deceased Dalpatsingh and Ransingh were recovered vide Memos Ex. P. 28 and 29 respectively. ( 6 ) THE blood stained articles were sent for chemical and serological examination and the re ports of State Forensic Science Laboratory, Raj, Jaipur and Serological and Chemical Examiner have been marked as Exs. P. 27 and the blood stained clothes of deceased Dalpatsingh and Ransingh were recovered vide Memos Ex. P. 28 and 29 respectively. ( 6 ) THE blood stained articles were sent for chemical and serological examination and the re ports of State Forensic Science Laboratory, Raj, Jaipur and Serological and Chemical Examiner have been marked as Exs. P. 46 and 47 respectively. ( 7 ) AFTER usual investigation, the case against the accused-appellants was challenged in the Court of the learned Munsif and Judicial Magistrate, Sirohi from where, it was committed for trial to the Court of the learned Sessions Judge, Sirohi, who charged the accused-appellants for the offence under Ss. 302/34, I. P. C. The accused-appellants did not plead guilty the charge and claimed trial, whereupon, the prosecution examined as many as 20 witnesses in support of its case. The accused-appellants exam ined two witnesses in their defence. However, after hearing both the parties, the learned Sessions Judge has convicted and sentenced the accused-appellants as aforesaid. Hence this appeal. ( 8 ) WE have heard Mr. Suresh Kumbhat, the learned counsel appearing for the appellants, Mr. C. R. Jakhar, the learned Public Prosecutor for the State and Mr. Doongarsingh, the learned counsel appear ing for the complainants and have critically gone through the record of the case. ( 9 ) THE learned Session Judge has held that the deaths of Mangalingh, Ransingh and Dalpatsingh were homicidal in nature and that facts stands proved by the testimony of P. W. 13 Dr. D. K. Barmera, who conducted the post-mortem examination of the dead bodies of Mangalsingh, Ransingh and Dalpatsingh on 10-6-1981 between 2. 30 p. m. and 4 p. m. in village Mamavali. On external examination, the Doctor found that Manglsingh had one incised wound of the size of 7 1/2 " x 1 1/2" x 2," on right side of his neck and face extending from 2" behind the ear cutting the ear in middle and over the cheek, 1/2" below the right eye, just below the right nostril and to the upper lip just below the nose. The second incised wound was below the nostril communicat ing with the oral cavity, Right maxillary bone was cutting at the wound. The right mandible was also cutting at the site of the wound. The second incised wound was below the nostril communicat ing with the oral cavity, Right maxillary bone was cutting at the wound. The right mandible was also cutting at the site of the wound. The blood vessels were also cut at the base of the wound on right side of the neck. The deceased Mangalsingh had also one incised wound of the size of 3" x 1 1/2 ovael in shape on the top of the scalp with skin flap posteriority and on the left side. The bone piece was also chipped off in the middle in 1/2" circular area. The position of the wounds have been shown in diagram in the post-mortem examination report in A to B and C to D. According to the Doctor, rigor mortis was present and the death was caused due to wound No. 1. The duration of the death was within 24 hours. The Doctor has also opined that these injuries could be caused either by a sword or by a Dhariya. ( 10 ) ACCORDING to the Doctor, deceased Dalpatsingh had one incised wound of the sized of 13" x 4" extending from the top of left shoulder to anterior surface of right shoulder. The trachea, esophagus and great vessels on both side of neck were cut. The depth of the wound varied. On right shoulder, the muscles were cut and the head of humerus was exposed with an incised wound of the size of 1 1/2" long over the bone. In middle, the trachea was cut below the orecoid cartilage. The esophagus was also cut. A cut wound of the size of 1 1/2 long scar was on the anterior surface of the C 6 vertebrae. The muscles were exposed and were cut on the left side not exposing the bones. The clavicles were in tact. The wound has been explained by diagram A to B in the post-mortem report. In the opinion of the Doctor, the death was due to shock because of massive hemorrhage due to the wound. The duration could be within 24 hours. Looking to the nature of wound in relation to its length, the weapon ought to be something like a sword. ( 11 ) ON external examination of the dead body of Ransingh, rigor mortis was found present at the time of autopsy with body and clothes stained with blood. Pupils were dilated. The duration could be within 24 hours. Looking to the nature of wound in relation to its length, the weapon ought to be something like a sword. ( 11 ) ON external examination of the dead body of Ransingh, rigor mortis was found present at the time of autopsy with body and clothes stained with blood. Pupils were dilated. Both lungs were deflated. Right chamber of heart had little blood, while the left was empty. The stomach, small and large intestines were distended with gases while liver, spleen and kidney were pale in appearance. The right hand was amputated. There was an incised wound of the size of 12" x 2" on the face extending from 3" on right side and 1" below the right eye cutting the bones and about 1/2" above the tip of nose exposing the nasal cavity and on left side extending 1/2" below the maxillary prominence cutting the maxillary bone extending on left side below the ear lobule cutting the left side of ramous of mandible and 3"posterior to the ear over the neck cutting the muscle and vessels. The Doctor has further found that the deceased Ransingh had also an incised wound of the size of 7" long extending from right angle of mandible to 1/2 " below the lower lip to left side in the supra clavicular fossa 1 1/2" above mid of clavicle. The mandible was cut throughout the wound with cutting of the trachea just above the thyroid bone and the great vessels on left side. In the opinion of the Doctor, the deceased Ransingh died due to shock because of massive hemorrhage due to wounds No. 2 and 3 and within 24 hours. Injuries could be caused by sharp weapon like sword. The Doctor has further opined that the injuries of all these three deceased persons were sufficient in the ordinary course of nature to cause death. The Doctor has proved the post-mortem re ports Ex. Ps. 31, 32 and 33 of deceased Mangalsingh, Dalpatsingh and Ransingh. This clearly shows that the deaths of Mangalsingh, Dalpatsingh and Ransingh were homicidal. ( 12 ) NOW, we would like to examine as to whether the accused-appellants are responsible for the mur der of Mangalsingh, Dalpatsingh and Ransingh ? The Doctor has proved the post-mortem re ports Ex. Ps. 31, 32 and 33 of deceased Mangalsingh, Dalpatsingh and Ransingh. This clearly shows that the deaths of Mangalsingh, Dalpatsingh and Ransingh were homicidal. ( 12 ) NOW, we would like to examine as to whether the accused-appellants are responsible for the mur der of Mangalsingh, Dalpatsingh and Ransingh ? ( 13 ) SO far as the murder of Mangalsingh is concerned it is alleged that it has been witnessed by P. W. 14 Mst. Even Kanwar, wife of deceased Mangalsingh, P. W. 16 Mst. Sant Kanwar, wife of Modsingh and P. W. 15 Devisingh, the younger brother of deceased Mangalsingh, who came to the place of the occurrence on hearing the cries of Mst. Evan Kanwar and Mst. Sant Kanwar from a distance of about 10 and has seen the accused persons soon after the occurrence, just near the body of Mangalsingh. ( 14 ) ACCORDING to the prosecution witnesses, on the fateful night, Mangalsingh was sleeping inside his house. The house of Mangalsingh and Modsingh are situated within the same boundary wall without any partition. The verandah of these houses is com mon. In both these house, there is one room and one kitchen. As per the site plan Ex. P. 36, the southern portion is that of Mangalsingh and the northern portion is that of Modsingh. Mangalsingh was uri nating at place a shown in site plan Ex. P. 36 and at that time, it is alleged that he was attacked by these three accused-appellants. According to P. W. 14 Mst. Evan Kanwar, Mangalsingh first wanted to drink water. He woke her up and took one glass of water and then he went outside to urinate. It is alleged that while he was urinating, he was attacked by accused-appellant Chhailsingh with sword. He accompanied by accused-appellants Bhansingh and Jaisingh, who were armed with Dhariya and dragger respectively. There was one more persons, who was wearing a black pant but he could not be identified by P. W. 14 Mst. Evan Kanwar. The person, who was wearing black pant, was a little away from the accused-appellants Bhansingh, Chhailsingh and Jailsingh, towards the Bada of Aamsingh. ( 15 ) IN her statement before the Court, P. W. 16 Mst. Santkanwar has stated that on the fateful night, she was sleeping in her Kotha. Her husband had gone to the filed. Evan Kanwar. The person, who was wearing black pant, was a little away from the accused-appellants Bhansingh, Chhailsingh and Jailsingh, towards the Bada of Aamsingh. ( 15 ) IN her statement before the Court, P. W. 16 Mst. Santkanwar has stated that on the fateful night, she was sleeping in her Kotha. Her husband had gone to the filed. While she was sleeping in her Kotha, she heard that Mangalsingh was demanding water from his wife P. W. 14 Mst. Evan Kanwar. Mst. Evan Kanwar supplied a glass of water to Mangalsingh and thereafter, her husbands elder brother Mangalsingh went outside and after some time, she heard the cries of Mangalsingh from outside their enclosure. On this, she and P. W. 14 Mst. Evan Kanwar came out and saw accused Chhailsingh with a naked sword attacking on Mangalsingh. According to her, accused Bhansingh was armed with a Dhariya and accused Jaisingh was armed with a dragger. She has further stated that one more person was there, who was wearing black pant and was standing near the Bada of Aamsingh. On seeing this attack on Mangalsingh, they also cried, which attracted the attention of P. W. 15 Devi Singh, who immediately came to the place of the occurrence. His house is situated at a distance of about 10 to 12 away from the place of the occurrence. When P. W. 15 Devisingh arrived at the place of the occur rence, Mangalsingh had already been injured by these accused-persons and the blood was oozing out from his wounds. Accused-appellants. Chhailsingh, Bhansingh and Jaisingh were standing there armed with naked sword, Dhariya and dragger respec tively. He identified them because they are his real nephews. On that day, the night was bright. As soon as he came there and reached near the body of Mangalsingh, these accused-persons ran away from the place of the occurrence towards the Bada of Aamsingh and from there they made good their escape. P. W. 15 Devisingh has also stated that there was one more person, whom, he did not identify. Thereafter, P. W. 15 Devising, P. W. 6 Sant Kanwar and P. W. 14 Mst. Avan Kanwar took Mangalsingh inside the house and put him on a cot. This evidence of P. W. 14 Mst. Evan Kanwar, P. W. 16 Mst. Kanwar and P. W. 15 Devisingh is corroborated by the site plan Ex. Thereafter, P. W. 15 Devising, P. W. 6 Sant Kanwar and P. W. 14 Mst. Avan Kanwar took Mangalsingh inside the house and put him on a cot. This evidence of P. W. 14 Mst. Evan Kanwar, P. W. 16 Mst. Kanwar and P. W. 15 Devisingh is corroborated by the site plan Ex. P. 36, which has been proved by P. W. 19 Investigating Officer Vikramsingh, who prepared the site plan and P. W. 12 Gulabsingh, who has also proved the site plan and site inspection memo of the house of Mangalsingh. The site plan Ex. P. 36 and site inspection memo Ex. P. 22 clearly shows that blood was found outside the house of Mangalsingh at place a, where he was urinating as per P. W. 14 Mst. Avan Kanwar and P. W. 16 Mst. Sant Kanwar and further, it was found inside the house of Mangalsingh at place b, where he was put on the cot, as per P. W. 14 Mst. Evan Kanwar, P. W. 16 Mst. Sant Kanwar and P. W. 15 Devisingh. ( 16 ) IT has been contended by Mr. Suresh Kumbhat, the learned counsel appearing for the accused-ap pellants that the FIR which was lodged by P. W. 11 Gangasingh does not disclose the name of accused Chhailsingh, although he disclosed the names of accused Bhansingh and Jaisingh. According to him, if accused Chhailsingh was there at the time of the occurrence and was identified by P. W. 15 Devisingh then certainly, the name of Chhailsingh should have been found mentioned in the FIR. The FIR was lodged by P. W. 11 Gangasingh on the information of P. W. 15 Devisingh and P. W. 9 Modsingh. If the name of Chhailsingh was disclosed to P. W. 11 Gangasingh then he should have mentioned that name in the FIR and he would not have told the Police that two persons, who were identified were Bhansingh and Jaisingh and the other two person who could not be identified, one of them was wear ing a Dhoti and the other was wearing a black pant. He has, therefore, argued that the testimony of these witnesses as regards the identification of accused Chhailsingh should not be believed. ( 17 ) IT has been further contended by Mr. He has, therefore, argued that the testimony of these witnesses as regards the identification of accused Chhailsingh should not be believed. ( 17 ) IT has been further contended by Mr. Kumbhat that accused Chhailsingh has taken the plea of alibi and has stated that on the date of the occurrence, he was in Bombay and he came to his village on receiving a telegram. In this respect, the prosecution has examined P. W. 2 Himmat Ram, P. W. 3 Nathu, P. W. 6 Kesa, P. W. 7 Shantilal and P. W. 8 Nathmal. P. W. 2 Himmatram has turned hostile. He has stated that on 9-6-1981, he might have come to Abu Road from Kutch and from Abu Road, he might have come to his village but he is not sure about it. He has further stated that on that day, any of the accused-persons travelled with him in the Bus, he does not know, He was confronted with portions A to B and C to D of his police statement Ex. P. 3, wherein he has categorically admitted that he knows accused Chhailsingh and on 9-6-1981, he came from Mount Abu to Abu Road in a Bus and in that very Bus, accused Chhailsingh travelled with him. However, in his statement before the Court, he has stated that he did not make such a statement before the Police. He has admitted that on that day, he got down from the Bus near Hanuman temple, from where, a road goes to village Mamawali. ( 18 ) P. W. 3 Nathu has admitted that on the last Jeth Sud Aatham, accused Chhailsingh met him while getting down from the Bus near Hanuman Temple from the last Bus which goes from Abu Road to Sirohi. On that day, the priest of the Hanuman Temple had gone to attend a community feast and, therefore, he went to the temple for worshipping lord Hanumanji. He has stated that Chhailsingh was doing his business in Bombay. He knows him for the last 15 years. While Chhaailsingh got down from the Bus, he asked him to stay but he told that on account of some work, he could not stay. Thereafter, Chhailsingh started on foot towards the road, which goes to Sirohi. He was wearing pant and bushirt and was having a cotton bag in his hand. He knows him for the last 15 years. While Chhaailsingh got down from the Bus, he asked him to stay but he told that on account of some work, he could not stay. Thereafter, Chhailsingh started on foot towards the road, which goes to Sirohi. He was wearing pant and bushirt and was having a cotton bag in his hand. The place from where he started on foot, the road goes to village Mamawali. A long cross-examination has been done with him but he struck to his version that on 9-6 -1981, he saw accused Chhailsingh going towards the village Mamawali after he got down from the evening Bus. ( 19 ) P. W. 6 Kesa has stated that accused Chhailsingh works somewhere in Bombay. Accord ing to him, his son Prakash and accused Chhailsingh came from village Mamawali to Bombay on Satur day. Chhailsingh again met him on the next day and told that he is in search of service and after 3-4 days, he again met him and told that he has received a telegram from his house and therefore, he demanded some amount for going to his village and he gave Rs. 110. 00 to him for going to his village. Thereafter, Chhailsingh did not meet him. He has admitted that Chhailsingh used to wear pant and Bushirt. ( 20 ) IN his Statement before the Court, P. W. 7 Shantilal has stated that he knows accused Chhailsingh. He is having his own business of cloth processing in Bombay. He has further stated that on 6-6-1981, his younger brother Sohanlal purchased a Car bearing No. MMG 350. On that day, there were not having any Driver of the Car and, therefore, he told Khangar Purohit for engaging a Car Driver. In the evening of 6-6-1981, Khangar Purohit brought accused Chhailsingh to him far engaging him as the Driver of the Car. He called accused Chhailsingh on 7-6-1981 for trial. Chhailsingh came to him on 7-6 1981 for trial and on that day, his salary was fixed and he was asked to come on duty from 8-6-1981. In the evening of 6-6-1981, Khangar Purohit brought accused Chhailsingh to him far engaging him as the Driver of the Car. He called accused Chhailsingh on 7-6-1981 for trial. Chhailsingh came to him on 7-6 1981 for trial and on that day, his salary was fixed and he was asked to come on duty from 8-6-1981. He has further stated that when he and accused Chhailsingh went for trial, the Car developed disor der and therefore, on 8-6-1981, they went with the Car to the Tonny Garage, where they were told that the Gaskit of the Car has damaged and, therefore, it will take 2 days for repair. Thereafter, while they were coming back, accused Chhailsingh told him that he wants to go on leave for two days and he permitted him. He came back on duty on 11-6-1981. According to this witness, accused Chhailsingh did not meet him either on 9-6-1981 or on 10-6-1981. The occurrence has taken place in the night interven ing 9th and 10/06/1981. ( 21 ) P. W. 8 Nathmal has stated that he is serving in Bombay for the last 10 years. The letters of the persons, who are the residents of his village and are having no permanent address in Bombay, used to come at his address and he delivered those letters to the concerning persons. He has stated that he does know when Chhailsingh came to Bombay. He re ceived a telegram relating to Chhailsingh on 11-6-1981. That telegram was given by his brother Babulal, in which, it was mentioned chhailsingh COME SOON, He told about his telegram to Khangar Purohit and further requested him to inform Chhailsingh. Chhailsingh came to his shop at 11 a. m. and took the telegram from him. This witness has admitted that Chhailsingh was living in Bombay and was doing the work of driving from before. When he was living in Bombay from before, there was no question of sending any telegram at the address of P. W. 8 Nathmal for informing Chhailsingh to come soon. Normally, if a person of the family goes out of station for doing some job, his family members will send the message to him at the address where he is performing his job and not at the address of others. Thus, this version of P. W. 8 Nathmal cannot be believed. Normally, if a person of the family goes out of station for doing some job, his family members will send the message to him at the address where he is performing his job and not at the address of others. Thus, this version of P. W. 8 Nathmal cannot be believed. ( 22 ) ON scrutiny of the testimony of these witnesses, viz. , P. W. 2 Himmat Ram, P. W. 3 Nathu, P. W. 6 Kesa, P. W. 7 Shantilal and P. W. 8 Nathmal, it is crystal clear that on the fateful night, accused Chhailsingh was in between Abu Road and Sirohi and was seen near Hanuman Temple, from where a road goes towards the village Mamawali and the occurrence had taken place in the night intervening between 9th and 10/06/1981. The testimony of P. W. 6 Kesa, P. W. 7 Shantilal and P. W. 8 Nathmal that the accused-appellant Chailsingh was in Bombay is not at all reliable. An unemployed person, who is recently appointed will never request his employer on the first day of his joining service that he will not he able to come on duty for two days. A recently employed with his work rather than proceed on leave on the first day of his joining when the Car on which he has been appointed as Driver, has devel oped some mechanical problem. Moreover, P. W. 7 Shantilal has admitted that accused Chailsingh did not meet him either on 9-6-1981 or on 10-6-1981. As stated above, the occurrence has taken place in the night intervening between 9th and 10/06/1981. Even the alleged telegram sent to the address of P. W. 8 Nathmal has not been produced in the Court and, therefore, it cannot be believed that on the date of the occurrence, accused Chhailsingh was in Bombay. Khangar Purohit, who managed him em ployment has also not been examined. Thus, this evidence of Chhailsingh being in Bombay on the fateful night cannot be believed. His presence in his village stands fully established. ( 23 ) IT is true that in the FIR, it has not been mentioned that Chhailsingh was there but it has been categorically mentioned by P. W. 11 Gangasingh that four persons were there. This FIR has not been got recorded by the eye-witnesses. His presence in his village stands fully established. ( 23 ) IT is true that in the FIR, it has not been mentioned that Chhailsingh was there but it has been categorically mentioned by P. W. 11 Gangasingh that four persons were there. This FIR has not been got recorded by the eye-witnesses. Some informa tions about this incident were given to P. W. 11 Gangasingh by P. W. 9 Modsingh and P. W. 15 Devisingh and they have categorically stated that they told the name of accused Chhailsingh to P. W. 11 Gangasingh but it appears that P. W. 11 Gangasingh has forgotten his name and so, he did not get it recorded in the FIR. However, he has got it recorded in the FIR that four persons were there. Moreover, in this case, the relations of complainant party and the accused-persons are so close that there cannot be any question of wrong identification or false implication. Even if it was not a moon-light night, the accused-persons who are the real sons of the real brother of the witnesses could be identified in the month of June even in the star-lit night what to talk of moon-lit night. In this view of the matter, much does not turn upon the controversy of identification of accused-persons by the eye-witnesses on the fateful night with or without moon lit night. ( 24 ) IT was next argued by Mr. Kumbhat that in this case, as per the testimony of P. W. 13 Dr. D. K. Barmera, who conducted the post-mortem examina tion of deceased Mangalsingh, the bladder and intes tines of deceased Mangalsingh were empty. He has submitted that in her statement before the Court, P. W. 14 Mst. Evan Kanwar has stated that her husband Mangalsingh took meals on that day at 7 p. m. He has, therefore, canvassed that the occur rence had not taken place at the time it is alleged and the witnesses have not seen the occurrence. We may state here that in the post-mortem report Ex. P. 31, the Doctor has nowhere stated that the intestines were empty. He has only stated that the intestines were distended and gases were there. We may state here that in the post-mortem report Ex. P. 31, the Doctor has nowhere stated that the intestines were empty. He has only stated that the intestines were distended and gases were there. Moreover, P. W. 14 Evan Kanwar and P. W. 16 Sant Kanwar have stated that Modsingh had gone to urinate and after he was injured, some blood fell outside his house from the wounds caused to him and, thereaf ter, these witnesses took him inside the house and put him on the cot and therefore, blood has been detected at places A and B shown in the site plan Ex. P. 36. Had Mangalsingh been not shifted from place A to B, lot of blood would have been found at place a shown in the site plan Ex. P. 36. Had he been remained unattended for 2-3- hours, then lot of blood could have been found at place a shown in the site plan Ex. P. 36 where he was assaulted. Moreover, streak of blood was found between place A and B shown in the site plan Ex. P. 36, which establishes the fact of shifting him from place A to place B soon after the assault, as only small quantity of blood was detected at place A in comparison to place B shown in the site plan Ex. P. 36. This lends support to the fact that this occurrence was wit nessed by these witnesses, who immediately shifted him soon after the accused-persons left the place of the occurrence. In this view of the matter, the testi mony of P. W. 14 Mst. Evan Kanwar, P. W. 15 Devisingh and P. W. 16 Mst. Sant Kanwar appears to be totally reliable. ( 25 ) P. W. 15 Devisingh was sleeping at place h shown in the site plan Ex. P. 36, which is at a distance of about 10 to 12 from place a and he identified the accused-persons who were standing at place a d from place e which is only a distance of about 2 3 feet from place a. It was not difficult for him to identify his own real nephew from that distance even in a dark night and, therefore, so far as the incident of causing injuries to Mangalsingh in front of his house is concerned, the evidence of these three witnesses viz. , P. W. 14 Mst. , P. W. 14 Mst. Evan Kanwar, p. W. 15 Devisingh and P. W. 16 Mst. Sant Kanwar is totally reliable. These witnesses have categori cally stated that injuries were inflicted to Mangalsingh by accused Chhailsingh with his sword and he was accompanied by other three persons, two of them were accused Bhansingh and Jaisingh, who were armed with Dhariya and Dragger respectively. ( 26 ) IT was next contended by Mr. Kumbhat that other two persons viz. accused Bhansingh and Jaisingh were on lookers. This contention of Mr. Kumbhat cannot be accepted because the houses of these three accused-persons viz. , Chhailsingh, Bhansingh and Jaisingh are not situated near the house of deceased Mangalsingh and at that hour of night, they were not expected to be there as by standers armed with Dhariya and dragger. It clearly shows that accused-appellants. Chhailsingh, Bhansingh and Jaisingh had common intention to kill Mangalsingh with whom they had a land dispute and accordingly, they have executed their plan of killing Mangalsingh by infliction of sword injuries by accused Chhailsingh. ( 27 ) IT was further contended by Mr. Kumbhat that P. W. 14 Mst. Evan Kanwar could not have seen the occurrence because the boundary wall is 5 high and her own height is about 5. In his statement before the Court, P. W. 19 Investigating Officer Vikram Singh has categorically stated that at place a, there was rock and it was visible from inside and, therefore, even if the boundary wall was 5 high, Mst. Evan Kanwar could have seen the occurrence while standing inside the boundary wall of her house. Moreover, the distance between place a and place b is only 32 and so, on hearing the cries of Mangalsingh, it was not difficult for Mst. Evan Kanwar to go near Mangalsingh, when Mst. Sant Kanwar could go near Mangalsingh on hearing his cries, why Evan Kanwar could not do so. Actu ally, they have stated that they went near Mangalsingh and saw these accused-persons and thereafter, when Devisingh arrived at the place of the occurrence, they brought Mangalsingh inside the house and put him on a cot. Thus, the testimony of P. W. 14 Mst. Evan Kanwar, P. W. 15, Devisingh and P. W. 16 Mst. Sant Kanwar regarding participation of the accused-per sons in this occurrence is totally reliable and has to be believed. Thus, the testimony of P. W. 14 Mst. Evan Kanwar, P. W. 15, Devisingh and P. W. 16 Mst. Sant Kanwar regarding participation of the accused-per sons in this occurrence is totally reliable and has to be believed. ( 28 ) SO far as the murder of Ransingh and Dalpatsingh is concerned, it took place in Bhadarva Jav. It has been categorically stated by P. W. 15 Devisingh that when they saw that on account of the land dispute between them and the accused-persons, the accused persons have killed Mangalsingh, they could also kill Ransingh and Dalpatsingh, who were sleeping at the Bhadarva Jav and, therefore, after the accused-persons ran away from the house of Mangalsingh after killing him with the sword, they remained there for half an hour and then they went to Bhadarwa Jav and when they reached Bhadarwa Jav, they saw from some distance these accused persons standing there armed with deadly weapons as stated above, near the cots of Dalpatsingh and Ransingh and when they tired to go near them, they were threatened by these accused persons with death and so, they did not go near them and thereafter, the accused persons ran away from the place of the occurrence. P. W. 9 Modsingh and P. W. 15 Devising have categorically stated that after the accused per sons ran way, they went near the cots of Dalpatsingh and Ransingh and saw that they have been murdered and then they came to their house, woke up their other brother Jawaharsingh. In the morning, they told P. W. 11 Gangasingh to inform the Police about this incident. They have stated that they stayed at the house of Mangalsingh for half an hour after the accused-persons ran away from the place of the occurrence. If that was so, it is quite improbable that the accused persons would be waiting for them for half an hour to come and identify them. They already ran away after killing Mangalsingh and if they were determined to kill Ransingh and Dalpatsingh then, they would have immediately gone to Bhadarva Jav to kill Ransingh and Dalpatsingh, which is situated at a distance of about one and half kilometer from village Mamawali and must have killed them imme diately and would not have waited for the arrival of the witnesses to identify them. Thus, it was not at all possible for Modsingh and Devisingh to have reached the place of the occurrence at the time when the accused persons were there. ( 29 ) MOREOVER, in his statement, P. W. 13 Dr. D. K. Barmera has stated that the bladder, stomach and large and small intestines of Dalpatsingh and Ranisingh were totally empty. If that be so, then the occurrence might have taken place at a time when they might have eased themselves and have uri nated. As per P. W. 14 Mst. Evan Karnwar, on that evening, they had taken the meals. ( 30 ) IN this respect, Mr. Kumbhat drew our attention to Modis Medical Jurisprudence and Toxi cology, Twentieth Edition, page-139, wherein it has been observed as under :"in some cases, the time of death may be calcu lated by examining whether the bladder or intestines are empty or not. Thus, in the case of an individual having been murdered in bed in night, one can state that the individual had lived for some time after going to bed if the bladder was found full of urine, since people usually empty their bladder before going to bed. Similarly, one can give an opinion that the death occurred sometime after he had got up in the morning if the large intestines was found empty of faecal matter. "mr. Kumbhat further drew our attention to a treatise homicide Investigation, by Le Moyne Synder (Revised and enlarged ninth printing) (page 41), wherein it has been observed as under :"if the stomach is entirely empty, death probably took place at least four to six hours after the last meal. In addition, if the small intestine is also empty, the probability is that death took place twelve or more hours after food was last eaten. " ( 31 ) IN this respect, Mr. Kumbhat also drew our attention to a Division Bench decision of the Delhi High Court in Jagjit Singh v. State (1990 (2) Chandigarh Criminal Cases (HC) 197), wherein it has been observed that the semi digested food takes more than three hours to digest in the stomach. ( 32 ) OUR attention was next invited to a decision of their Lordship of the Supreme Court in Abdul Razaq v. Nanhey (1984 SCC (Cr) 384 ). ( 32 ) OUR attention was next invited to a decision of their Lordship of the Supreme Court in Abdul Razaq v. Nanhey (1984 SCC (Cr) 384 ). That was a case in which the stomach of the deceased was found empty and therefore, it was observed by their lordships of the Supreme Court that if the stomach of the deceased is found empty at the time of his post mortem examination, the inference that the incident took place early in the morning would be a pure speculation. It may be possible that the deceased may not have taken anything at all till 10 a. m. These observations go in favour of the prosecution rather than the defence. ( 33 ) OUR attention was next drawn to a Division Bench decision of this Court in Balvendra Singh v. State of Raj (1982 WLN (UC) 409 ). That was a case in which the Doctor did not mention in the post mortem report about the contents of the stomach or small and large intestines and, therefore, in absence of such omission in the post-mortem report about the contents of the stomach and small and large intes tines, the learned Judges felt that the medical evi dence was consistent with the possibility that the crime had been committed in the early hours of the morning when the deceased had gone to answer the call of nature and that nobody had seen the actual incident. ( 34 ) IN this case, as regards deceased Mangalsingh, it has not been mentioned in his post-mortem report by the Doctor that large and small intestines were empty. Rather nothing has been mentioned about the contents therein. Of course, it has been mentioned that they were distended with gases and, therefore, it cannot be said with any certainty as regards the time of his death. ( 35 ) MR. Kumbhat then drew our attention to a decision of their lordship of the Supreme Court in Subhash v. State of U. P. (1976 SCC (Cr) 483, wherein it has been observed that the finding of empty stomach falsifies prosecution story that the deceased was shot while returning from the fields after eating muskmelons. That was a case wherein it was alleged that the deceased was shot soon after eating muskmelons and, therefore his stomach could not have been found empty. That was a case wherein it was alleged that the deceased was shot soon after eating muskmelons and, therefore his stomach could not have been found empty. In this case, lot of time had elapsed between the time of taking the meals and the time of incident and in that intervening period, the injured Mangalsingh might have eased himself and therefore, it cannot be said with certainty that the occurrence has not taken place at the time, it is alleged, ( 36 ) IN this respect, Mr. Jhakhar, the learned Public Prosecutor for the State drew our attention to a decision of this Court in Likhmaram v. State (1983 Cr LR (Raj) 304), wherein it has been observed that different food stuffs require different time in diges tion and the Doctor also could not say of which type of food the semi-solid contents were. A part from it, the rustic illiterate ladies are liable to commit mis take in stating the exact hour of the occurrence or even about deceased taking the food. ( 37 ) HE further drew our attention to another Division Bench decision of this Court in Narayanlal v. State (1992 Cr LR (Raj) 7), wherein it has been observed that the time of the death of the deceased has not been established satisfactorily. In para 71 of the Judgment, it has been further observed that the rate of emptying of stomach varies in healthy per sons. The emptying of stomach depends on (i) consistency of food, (ii) motility of stomach, (iii) osmotic pressure of stomach contents, (iv) quantity of food in duodenum, (v) surroundings in which food is taken, (vi) emotional factors and (vii) re sidual variations. It varies in man from 2-5-6 hours. A meal containing carbohydrates generally leaves the stomach early and one containing proteins later. The fatty food delays emptying time while liquids leave the stomach immediately after ingestion. Thus only on the basis of the fact that the stomach of the deceased was found empty, the testimony of these three eye-witnesses cannot be disbelieved. ( 38 ) AS stated above, it appears quite improbable that after killing Mangalsingh, when the accused persons ran away from the place of the occurrence, they would have waited for about half an hour for the arrival of these two witnesses viz. ( 38 ) AS stated above, it appears quite improbable that after killing Mangalsingh, when the accused persons ran away from the place of the occurrence, they would have waited for about half an hour for the arrival of these two witnesses viz. , P. W. 9 Modsingh and P. W. 15 Devisingh to observe them standing near the cots of Dalpatsingh and Ransingh. The deceased Dalpatsingh and Ransingh were sleeping at Bhadarwa Jav and they were assaulted there and only 2-3 injuries have been found on their person and the causing of those 2-3 injuries might have hardly taken a minute or two and, thereafter, the testimony of P. W. 9 Modsingh and P. W. 15 Devisingh that they saw these accused persons stand ing near the cats of Dalptsingh and Ransingh armed with deadly weapons appears to be unreliable. More over, they have not seen them inflicting any blow in their presence. It means that they have killed them before their arrival. Thus, there was no reason for them to stay there after their object was achieved. This further makes their testimony unreliable. ( 39 ) IT may be that Dalpatsingh being the adopted son of Mangalsingh and Ransingh being the brother of Mangalsingh, P. W. 9 Modsingh and P. W. 15 Devisingh might have gone to their field to inform them about the murder of Mangalsingh or they might have gone there in order to save them from the inimical acts of these accused-persons but it does not appear probable that they have seen them i. e. ac cused-persons standing near the cots of Dalpatsingh and Ransingh. In this view of the matter, so far as the testimony of P. W. 9 Modsingh and P. W. 15 Devisingh that they have seen accused-appellants standing near the cots of Dalpatsingh and Ransingh cannot be believed. ( 40 ) IN this case, no blood has been detected on the pair of rubber shoes and sword and therefore, nothing turns upon the reports of the Chomical and Serological Examiner. ( 41 ) FROM the discussion that has been made hereinabove, it is clear that the accused-appellants Bhansingh, Jaisingh and Chhailsingh are respon sible for the murder of Mangalsingh and, therefore, we hold that they have been rightly held guilty of the offence under S. 302/34, I. P. C. by the learned Ses sions Judge for the murder of Mangalsingh. ( 41 ) FROM the discussion that has been made hereinabove, it is clear that the accused-appellants Bhansingh, Jaisingh and Chhailsingh are respon sible for the murder of Mangalsingh and, therefore, we hold that they have been rightly held guilty of the offence under S. 302/34, I. P. C. by the learned Ses sions Judge for the murder of Mangalsingh. How ever, the prosecution has failed to prove its case as regards the murder of Ransingh and Dalpatsingh against the accused-appellants and, therefore, they deserve acquittal by giving them the benefit of doubt as regards the murder of Ransingh and Dalpatsingh. ( 42 ) IN the result, this appeal is allowed in part. The conviction and sentence recorded by the learned Sessions Judge against the accused appellants Chhailsingh. Jaisingh and Bhansingh for the offence under S. 302/34, I. P. C. , for causing the murder of Mangalsingh is maintained. However, the accused -appellants Chhailsingh, Bhansingh, and Jaisingh are acquitted of the offence under S. 302/34, I. P. C. , for causing the murder of Ransingh and Dalpatsingh by giving them the benefit of doubt. ( 43 ) LET the result of this appeal be conveyed to the Jail authorities for necessary action and the record of this case be sent back to the learned lower Court forthwith. Appeal partly allowed. .