ORDER : 1. The respondents were charged of offence punishable under Section 302 and 201 Indian Penal Code before the V Additional Sessions Judge, Sitapur who after trial found them guilty of the said offences and sentenced them to undergo imprisonment for life for an offence under Section 302 read with 34 Indian Penal Code and further to undergo imprisonment for three years for an offence punishable under Section 201 Indian Penal Code. The appeal filed by the convicted accused before the High Court of Judicature at Allahabad was allowed disbelieving the prosecution case. The State of U.P. is in appeal before us as against the said judgment of the High Court. It is brought to our notice that during the pendency of this appeal respondent No.2 who was A2 before the trial court has died during so the appeal against the said respondent stands abated. 2. Brief facts for the disposal of this appeal are as follows: 3. There was enmity between respondent No.1, Shyam and deceased, Janardhan. The case of the prosecution is that respondent No1. suspected the deceased of having illicit affairs with his wife. In view of the said fact on 11th October, 1978 at about 4 a.m. when the deceased had gone out to answer the call of nature the accused persons attacked him and committed his murder by pressing his neck with lathi. On hearing the commotion PW.1,Sohan Lal who was the brother of the deceased allegedly came to the place of the incident and witnessed the incident. When Sohan Lal tried to confront the accused persons he was joined by PW.2 and PW.3 at which point of time the prosecution alleges that the said accused persons threw the body of Janardan to the river and ran away from the said place. The said witnesses then with the help of the villagers tried to recover the body of the deceased but they could do so only by about p.m. in the afternoon. In the meanwhile at 9.30 a.m., PW.8 went to police station Tambaur and loded a complaint in regard to the incident. After investigation the respondents were sent up for trial and as stated above while the trial court convicted the respondents the High Court has acquitted them. In the meanwhile at 9.30 a.m., PW.8 went to police station Tambaur and loded a complaint in regard to the incident. After investigation the respondents were sent up for trial and as stated above while the trial court convicted the respondents the High Court has acquitted them. The trial court accepted the evidence of PW.1, Sohan Lal, PW.2,Shiv Bhagwan and PW.3, Radhey Shyam who according to it had witnessed the incident and medical report as to cause death and came to the conclusion that the prosecution has established its case. While the High Court found that there was contradiction between the medical evidence and the evidence of the eye- witnesses. Hence it came to the conclusion that these eye - witnesses could not have seen the incident hence their evidence cannot be believed. 4. The contradiction in the medical evidence and the eye-witnesses' evidence arises in the following circumstances : while it is stated by the doctor that he noticed blood oozing from the nostrils saliva from the mouth and also he noticed semen coming from the urethra. Same was not possible if the body was in the water for over 9 hours because the blood, saliva and semen would have been washed out by the water. It is on this basis the High Court came to the conclusion that the eye witness version can not be accepted. 5. It is contended by Shri S.W.A. Qadri, learned counsel for the appellant that in view of the fact that there was consistency in the eye - witnesses' evidence and the medical evidence as to the presence of saliva, blood and semen should be ignored because the eye - witnesses have specifically and consistently stated that these accused persons after throttling the deceased, thrown the body into the river. 6. We cannot accept this argument. If really the body of the deceased was thrown into the river there can be no possibility of blood still coming out from the nostrils at the time of postmortem as also the presence of semen, being noticed by the doctor. The High Court, therefore, was justified in coming to the conclusion that it is most likely that the incident in question must have happened early in the morning on the bank of the river without being noticed by anybody and the eye - witnesses were deposing falsely. The High Court, therefore, was justified in coming to the conclusion that it is most likely that the incident in question must have happened early in the morning on the bank of the river without being noticed by anybody and the eye - witnesses were deposing falsely. In this view of the matter we find no reason to interfere with the impugned judgment. 7. On the said basis this appeal fails and the same is dismissed. 8. We place on record our appreciation for the valuable assistance rendered by Ms. Sushma Manchanda, learned amicus curiae. The fee of learned amicus is fixed at Rs. 750/-.