JUDGMENT H.K. SEMA, J.- THE ACCUSED SHRI KRISHNA, LAKHAN LAL, RAM SHANKER AND KAILASH NATH WERE PUT TO TRIAL BEFORE THE IVTH ADDITIONAL DISTRICT AND SESSIONS JUDGE, KANPUR, FOR THE MURDER OF THE DECEASED RADHEY SHYAM. THE TRIAL COURT CONVICTED THE ACCUSED SHRI KRISHNA UNDER SECTION 302 IPC AND LAKHAN LAL, RAM SHANKER AND KAILASH NATH WERE CONVICTED UNDER SECTION 302 WITH THE AID OF SECTION 34 IPC AND WERE SENTENCED TO RIGOROUS IMPRISONMENT FOR LIFE. AGGRIEVED THEREBY TWO APPEALS WERE PREFERRED BEFORE THE HIGH COURT. CRIMINAL APPEAL NO. 1123 OF 1980 WAS PREFERRED BY LAKHAN LAL AND OTHERS. CRIMINAL APPEAL NO. 1126 OF 1980 WAS PREFERRED BY THE ACCUSED SHRI KRISHNA. BOTH THE APPEALS WERE HEARD TOGETHER BY THE HIGH COURT OF ALLAHABAD AND BY THE IMPUGNED JUDGMENT AND ORDER THE APPEALS A WERE ALLOWED AND THE ACCUSED WERE ACQUITTED OF ALL THE CHARGES AGAINST THEM; HENCE THESE APPEALS BY SPECIAL LEAVE. BRIEFLY STATED, THE FACTS ARE AS FOLLOWS: THE COMPLAINANT PARTY AND THE ACCUSED ARE INTERRELATED. KALICHARAN HAD FIVE SONS (1) SATYA NARAIN, (2) RAM GOPAL @ MOORA, (3) CHHANU LAL (THE INFORMANT), (4) MUNNULAL, AND (5) SHRI KRISHNA (ACCUSED 4). THE DECEASED RADHEY SHYAM WAS THE SON OF CHHANU LAL. A-I LAKHAN LAL, A-2 RAM SHANKER ARE SONS OF MUNNULAL. A-3 KAILASH NATH IS THE SON OF A-4 SHRI KRISHNA. THE MOTIVE OF THE MURDER APPEARS TO BE THAT THE FIELD BELONGING TO KALICHARAN WAS CULTIVATED BY THE ACCUSED AND NO SHARE WAS GIVEN TO CHHANU LAL AND HIS SON RADHEY SHYAM (THE DECEASED). THE DECEASED RADHEY SHYAM APPEARS TO HAVE FORCIBLY CULTIVATED THE PORTION OF LAND WHICH CULMINATED IN HIS MURDER. 2. THE PROSECUTION STORY IN BRIEF IS THAT ON 22-7-1979 AT ABOUT 2 P.M. PW 1 CHHANU LAL (THE INFORMANT) STATED THAT ON THE FATEFUL DAY BOTH HE AND HIS DECEASED SON WERE PRESENT AT THE PLOT WHEN HE WAS TAKING GRASS OUT OF HIS PADDY PLOT IN WHICH THE PLANTS FOR TRANSPLANTATION HAD BEEN GROWN. HIS SON RADHEY SHYAM AT THAT TIME WAS SLEEPING UNDER THE CHHEKUR TREE AFTER TAKING HIS MEAL. AT ABOUT 2 P.M. FOUR ACCUSED CAME THERE. ACCUSED LAKHAN LAL, RAM SHANKER AND KAILASH NATH PRESSED RADHEY SHYAM ON THE GROUND AND ACCUSED SHRI KRISHNA CUT THE NECK OF RADHEY SHYAM BY A GANDASA. RADHEY SHYAM SHRIEKED BY WHICH THE COMPLAINANT WAS ATTRACTED AND SAW THE OCCURRENCE. AT ABOUT 2 P.M. FOUR ACCUSED CAME THERE. ACCUSED LAKHAN LAL, RAM SHANKER AND KAILASH NATH PRESSED RADHEY SHYAM ON THE GROUND AND ACCUSED SHRI KRISHNA CUT THE NECK OF RADHEY SHYAM BY A GANDASA. RADHEY SHYAM SHRIEKED BY WHICH THE COMPLAINANT WAS ATTRACTED AND SAW THE OCCURRENCE. THE COMPLAINANT RAISED AN ALARM WHICH ATTRACTED PW 3 DESH RAJ AND PW 5 SMT JAI SHRI DEVI, WIFE OF THE DECEASED, WHO CAME WITH WATER. AFTER SEEING THE ARRIVAL OF THE WITNESSES THE ACCUSED FLED AWAY. AFTER THE ACCUSED LEFT THE PLACE THE INFORMANT AND OTHERS WENT NEAR RADHEY SHYAM AND HE WAS FOUND DEAD WITH HIS NECK CUT. A WRITTEN REPORT WAS LODGED AT POLICE STATION SHEROAJPUR ON 22-7-1979 ITSELF AT 6.30 P.M. THE PLACE OF OCCURRENCE WAS AT A DISTANCE OF SIX MILES FROM THE POLICE STATION. 3. THE PROSECUTION EXAMINED THREE EYEWITNESSES, PW 1 CHHANU LAL (THE INFORMANT), PW 3 DESH RAJ IS AN INDEPENDENT WITNESS AND PW 5 SMT JAI SHRI DEVI, WHO WAS DECLARED HOSTILE. THE TRIAL COURT AFTER CONSIDERING THE EYEWITNESSES AND DOCUMENTS ON RECORD CAME TO THE CONCLUSION THAT THE PROSECUTION HAD ESTABLISHED ITS CASE BEYOND ALL REASONABLE DOUBTS AND RECORDED THE CONVICTION AS AFORESTATED. 4. LEARNED COUNSEL FOR THE APPELLANT CONTENDED THAT THE TRIAL COURT FINDINGS DO NOT SUFFER FROM ANY INFIRMITY AND THE HIGH COURT SHOULD NOT HAVE INTERFERED WITH THE FINDINGS RECORDED BY THE TRIAL COURT. ACCORDING TO HIM, THE HIGH COURTS REVERSAL OF CONVICTION IS SOLELY BASED ON PERVERSE FINDING. 5. PER CONTRA LEARNED COUNSEL FOR THE RESPONDENTS SUPPORTED THE ACQUITTAL RECORDED BY THE HIGH COURT, AS ACCORDING TO HIM, THERE WERE DISCREPANCIES AND CONTRADICTIONS IN THE EVIDENCE OF EYEWITNESSES AND THE ACCUSED WERE H ENTITLED TO ACQUITTAL. HE FURTHER CONTENDED THAT PW 5 WIFE OF THE DECEASED HAS TURNED HOSTILE AND NO RELIANCE CAN BE PLACED ON HER TESTIMONY. ACCORDING TO HIM, THE HIGH COURT WAS JUSTIFIED IN RECORDING ACQUITTAL AND THE SAME SHOULD NOT. BE DISTURBED. WE WILL STRAIGHTAWAY DEAL WITH THE FINDINGS OF THE HIGH COURT, WHICH IN OUR OPINION, ARE CONTRARY TO THE EVIDENCE ON RECORD AND PERVERSE. 6. PW 1 HAS STATED IN-CHIEF AS UNDER: "CHHANU LAL, PW 1 STATED IN PARA 4 THAT AT THE TIME OF OCCURRENCE, HE WAS TAKING GRASS OUT OF HIS PADDY PLOT IN WHICH THE PLANTS FOR TRANSPLANTATION HAD BEEN GROWN. 6. PW 1 HAS STATED IN-CHIEF AS UNDER: "CHHANU LAL, PW 1 STATED IN PARA 4 THAT AT THE TIME OF OCCURRENCE, HE WAS TAKING GRASS OUT OF HIS PADDY PLOT IN WHICH THE PLANTS FOR TRANSPLANTATION HAD BEEN GROWN. HIS SON RADHEY SHYAM AT THAT TIME WAS SLEEPING UNDER THE CHHEKUR TREE AFTER TAKING HIS MEAL. AT ABOUT 2.00 P.M. FOUR ACCUSED CAME THERE. ACCUSED LAKHAN LAL, RAM SHANKER AND KAILASH NATH PRESSED RADHEY SHYAM AT THAT VERY PLACE AND ACCUSED SHRI KRISHNA CUT THE NECK OF RADHEY SHYAM BY A GANDASA. RADHEY SHYAM SHRIEKED, AT WHICH THIS WITNESS WAS ATTRACTED AND SAW THE OCCURRENCE. THE WITNESS ALSO RAISED ALARM WHICH ATTRACTED RAM SARAN, DESH RAJ, THAKUR DIN AND THE WIFE OF THE DECEASED, WHO HAD COME WITH WATER. THE WITNESS FURTHER STATED THAT AFTER ARRIVAL OF THE WITNESSES THE ACCUSED FLED AWAY. THEREAFTER THIS WITNESS AND OTHERS CAME TO RADHEY SHYAM." 7. PW 2 DR. P.C. CHAURASIA, MEDICAL OFFICER, CONDUCTED THE POST-MORTEM EXAMINATION ON 24-7-1979 AT 2 P.M. AND FOUND THE FOLLOWING INJURIES: "INCISED WOUND 17 CM X 2.5 CM BONE-DEEP IN FRONT OF NECK IN ITS MIDDLE PART OVER THYROID CARTILAGE. MARGINS OF WOUND WERE SHARP-CUT, TAILING ON LEFT SIDE OF THE NECK. MUSCLE TISSUE, TRACHEA, OESOPHAGUS WERE CUT THROUGH AND THROUGH. CAROTID ARTERY AND JUGULAR VEINS ON BOTH SIDES OF THE NECK WERE FOUND CUT UNDER THE INJURY. FOURTH CERVICAL VERTEBRA WAS FOUND CUT PARTIALLY UNDERNEATH.: 8. THE HIGH COURT AFTER NOTICING THE STATEMENT OF PW 1 AND MEDICAL EVIDENCE AS REFERRED TO ABOVE RECORDED ITS FINDINGS AS UNDER: "IF THE STATEMENT OF THE INFORMANT AS MENTIONED IN PARA 17 IS ACCEPTED, THEN IT APPEARS THAT THE DECEASED RADHEY SHYAM HAD SHRIEKED WHILE HE WAS BEING PRESSED BY THESE THREE APPELLANTS, WHICH MEANS THAT HE HAD WOKEN UP BY THEN AND THEN HE HAD MADE A CRY. IN SUCH A SITUATION, IT WAS EXPECTED OF THE DECEASED RADHEY SHYAM TO SAVE HIMSELF FROM THE CLUTCHES OF THE ACCUSED PERSONS. BUT THIS HAS NOWHERE BEEN MENTIONED IN THE PROSECUTION CASE. IT IS ALLEGED THAT SHRI KRISHNA GAVE A GANDASA-BLOW WHICH CUT HIS NECK. IN HIS POST-MORTEM REPORT, THE DOCTOR HAS ALSO MENTIONED ONLY ONE INJURY OF 17 CM X 2.5 CM BONE-DEEP IN FRONT OF THE NECK IN ITS MIDDLE PART OVER THYROID CARTILAGE; MARGINS OF WOUND WERE SHARP-CUT, TAILING ON LEFT SIDE OF THE NECK. IT IS ALLEGED THAT SHRI KRISHNA GAVE A GANDASA-BLOW WHICH CUT HIS NECK. IN HIS POST-MORTEM REPORT, THE DOCTOR HAS ALSO MENTIONED ONLY ONE INJURY OF 17 CM X 2.5 CM BONE-DEEP IN FRONT OF THE NECK IN ITS MIDDLE PART OVER THYROID CARTILAGE; MARGINS OF WOUND WERE SHARP-CUT, TAILING ON LEFT SIDE OF THE NECK. MUSCLE TISSUE, TRACHEA, OESOPHAGUS WERE CUT, CAROTID ARTERY AND JUGULAR VEINS ON BOTH SIDES OF THE NECK WERE FOUND CUT UNDER THE INJURY. FOURTH CERVICAL VERTEBRA WAS FOUND CUT PARTIALLY UNDERNEATH. ALL THIS GOES TO SHOW THAT THE GANDASA HAD HIT IN THE MIDDLE PORTION OF THE NECK. IF PRIOR TO THE GANDASA-BLOW THE DECEASED HAD WOKEN UP, THEN IT WOULD NOT BE NATURAL TO RECEIVE SUCH INJURIES IN THE MIDDLE PORTION OF THE NECK. IT IS ALSO NOT NATURAL THAT THE KILLER, INSTEAD OF HITTING STRAIGHTAWAY, WOULD FIRST PRESS THE BODY OF THE DECEASED SO THAT HE COULD WAKE UP FROM HIS SLEEP AND MAKE PROTEST TO SAVE HIMSELF OR ESCAPE UNHURT. IN SUCH A A SITUATION, IT WOULD BE DIFFICULT TO HIT THE PERSON. THUS THE MANNER IN WHICH THE INFORMANT HAS NARRATED THE INCIDENT IS NOT VERY NATURAL." (EMPHASIS SUPPLIED) 9. IN OUR VIEW, THE FINDING RECORDED BY THE HIGH COURT IS NOT ONLY CONTRARY TO THE EVIDENCE OF PW 1 AND MEDICAL EVIDENCE BUT ALSO FAR-FETCHED AND IMAGINARY. IT IS NOBODYS CASE THAT THE DECEASED RADHEY SHYAM WOKE UP BEFORE A GANDASA CUT WAS GIVEN ON HIS NECK. IT IS THE SPECIFIC CASE OF PW 1 THAT THE ACCUSED LAKHAN LAL, RAM SHANKER AND KAILASH NATH PRESSED RADHEY SHYAM ON THE GROUND AND THE ACCUSED SHRI KRISHNA CUT THE NECK OF THE DECEASED RADHEY SHYAM BY A GANDASA. THE STATEMENT OF PW 1 IS WELL CORROBORATED IN MATERIAL PARTICULARS WITH THE EVIDENCE OF PW 2 DR. P.C. CHAURASIA. 10. THE OTHER CONTENTION RAISED BEFORE THE HIGH COURT WAS THAT IN THE FIR PW 1 STATED THAT AT ABOUT NOON THE DECEASED RADHEY SHYAM HAD TAKEN HIS FOOD AND SLEPT UNDER THE CHHEKUR TREE, WHILE IN THE WITNESS BOX PW 1 STATED THAT AT ABOUT 11 A.M. RADHEY SHYAM HAD TAKEN HIS MEAL. IT WAS ALSO RAISED BEFORE THE HIGH COURT THAT THE OCCURRENCE AT NOONTIME HAS BEEN CHANGED AS 11 A.M. TO SUIT THE DOCTORS EVIDENCE BECAUSE THE DOCTOR FOUND SEMI-DIGESTED MATERIAL IN THE STOMACH. IT WAS ALSO RAISED BEFORE THE HIGH COURT THAT THE OCCURRENCE AT NOONTIME HAS BEEN CHANGED AS 11 A.M. TO SUIT THE DOCTORS EVIDENCE BECAUSE THE DOCTOR FOUND SEMI-DIGESTED MATERIAL IN THE STOMACH. IT WAS ALSO RAISED THAT THE STATEMENT OF PW 1 WAS HIGHLY UNNATURAL ON THE GROUND THAT HE WOULD NOT TOUCH THE BODY OF HIS SON AFTER HIS MURDER. ALL THESE MINOR DISCREPANCIES OCCURRING IN THE STATEMENT OF PW 1 WERE CONSIDERED BY THE TRIAL COURT AND REJECTED BY RECORDING SOUND REASONS FOR REJECTING THE SAME IN PARAS 19,20,21,22 AND 23 AS UNDER: "19. CHHANU LAL, PW 1 STATED IN PARA 4 THAT AT THE TIME OF OCCURRENCE HE WAS TAKING GRASS OUT OF HIS PADDY PLOT IN WHICH THE PLANTS FOR TRANSPLANTATION HAD BEEN GROWN. HIS SON RADHEY SHYAM AT THAT TIME WAS SLEEPING UNDER THE CHHEKUR TREE AFTER TAKING HIS MEAL. AT ABOUT 2 P.M. FOUR ACCUSED CAME THERE. ACCUSED LAKHAN LAL, RAM SHANKER AND KAILASH NATH PRESSED RADHEY SHYAM AT THAT VERY PLACE AND ACCUSED SHRI KRISHNA CUT THE NECK OF RADHEY SHYAM BY A GANDASA. RADHEY SHYAM SHRIEKED AT WHICH THE WITNESS WAS ATTRACTED AND SAW THE OCCURRENCE. THE WITNESS ALSO RAISED ALARM WHICH ATTRACTED RAM SARAN, DESH RAJ, THAKUR DIN AND THE WIFE OF THE DECEASED, WHO HAD COME WITH WATER. THE WITNESS FURTHER STATED THAT AFTER ARRIVAL OF THE WITNESSES THE ACCUSED FLED AWAY. THEREAFTER THIS WITNESS AND OTHERS CAME TO RADHEY SHYAM, WHO HAD DIED INSTANTANEOUSLY. 20. THE LEARNED COUNSEL FOR THE DEFENCE CHALLENGED THE STATEMENT OF PW 1 FIRSTLY ON THE GROUND THAT HE COULD NOT GO FOR REMOVING THE GRASS FROM THE PADDY PLOT. IN THIS CONNECTION SOME CIRCUMSTANCES WERE BROUGHT TO MY NOTICE. FIRSTLY, IT WAS STATED THAT CHHANU LAL NEVER CULTIVATED ANY PLOT HIMSELF AND HIS LAND IS CULTIVATED BY OTHERS, VIDE HIS ADMISSION IN H PARA 12. HENCE IT WAS ARGUED THAT THERE WAS NOT ANY QUESTION OF HIS GROWING PADDY SEEDLINGS FOR TRANSPLANTATION. IN PARA 12 PW 1 STATED THAT ABOUT 5-6 YEARS BACK RADHEY SHYAM WAS IMPLICATED IN A CASE. EVEN PRIOR TO THAT THIS WITNESS USED TO GIVE HIS LAND ON BATAI TO OTHERS BUT AFTER THAT HE HIMSELF CULTIVATED ON BATAI. ACCORDING TO HIM TWO YEARS BACK HE HAD PURCHASED A BUFFALO AND THEREAFTER STARTED CULTIVATION HIMSELF. IN PARA 12 PW 1 STATED THAT ABOUT 5-6 YEARS BACK RADHEY SHYAM WAS IMPLICATED IN A CASE. EVEN PRIOR TO THAT THIS WITNESS USED TO GIVE HIS LAND ON BATAI TO OTHERS BUT AFTER THAT HE HIMSELF CULTIVATED ON BATAI. ACCORDING TO HIM TWO YEARS BACK HE HAD PURCHASED A BUFFALO AND THEREAFTER STARTED CULTIVATION HIMSELF. HE FURTHER ADMITTED THAT WHEN SOME LAND WAS GIVEN ON BATAI HE HAD NOTHING TO DO WITH GROWING OF THE CROP. EVEN FROM THESE ADMISSIONS IT CANNOT BE SAID THAT THE WITNESS NEVER PERSONALLY DID CULTIVATION, RATHER HE HAS SPECIFICALLY STATED THAT ABOUT 2 YEARS BACK HE HAD PURCHASED A BUFFALO AND DID CULTIVATION HIMSELF. HENCE THERE IS POSSIBILITY OF HIS HAVING GROWN PADDY SEEDLINGS FOR TRANSPLANTATION. 21. IN THIS VERY CONNECTION IT WAS ARGUED THAT IT WAS IMPROBABLE THAT HE WOULD TAKE OUT GRASS FROM THE PADDY PLOT OF 2-3 BISWAS FOR TWO DAYS AND EVEN THE WORK WOULD BE LEFT FOR THE THIRD DAY. THERE IS NOTHING UNNATURAL IN IT. IT HAS NOT GONE IN THE EVIDENCE THAT FOR TWO FULL DAYS, WORK OF TAKING OUT OF THE GRASS FROM THE PADDY PLOT WAS DONE. IF IT WAS BEING DONE FOR A FEW HOURS DAILY IT IS QUITE POSSIBLE THAT EVEN ON THE THIRD DAY SOME WORK WAS LEFT, SO THAT PW 1 AND HIS SON HAD GONE THERE TO COMPLETE IT. 22. THIRDLY, IT WAS ARGUED THAT THE WORK OF TAKING OUT THE GRASS FROM SEEDLINGS CANNOT BE DONE BY KHURPI. ON THIS VERY POINT ALSO PW 1 HAS BEEN CROSS-EXAMINED. HE STATED THAT IF THE SEEDLINGS ARE VERY THICK, THE GRASS CANNOT BE TAKEN OUT BY KHURPI OTHERWISE IT CAN BE DONE BY KHURPI. ON THIS POINT HIS STATEMENT IN PARA 15 MAY BE SEEN. IN VIEW OF THE POSITIVE STATEMENT IT CANNOT BE SAID THAT KHURPI IS NOT USED IN THE AFORESAID WORK. 23. IT WAS THEREAFTER ARGUED THAT NO KHURPI OR WEEDED GRASS WAS FOUND AT THE SPOT BY THE INVESTIGATING OFFICER WHICH CAN ONLY GO TO SHOW THAT THE STORY NARRATED BY PW 1. IS INCORRECT. I AM NOT IMPRESSED BY THIS ARGUMENT. THE INVESTIGATING OFFICER DID NOT SAY THAT HE TRIED TO FIND OUT KHURPI AND WEEDED GRASS BUT DID NOT FIND. HE (PW 6) STATED THAT HE DID NOT REMEMBER IF HE SAW KHURPI OR WEEDED GRASS AT THE SPOT OR NOT. IS INCORRECT. I AM NOT IMPRESSED BY THIS ARGUMENT. THE INVESTIGATING OFFICER DID NOT SAY THAT HE TRIED TO FIND OUT KHURPI AND WEEDED GRASS BUT DID NOT FIND. HE (PW 6) STATED THAT HE DID NOT REMEMBER IF HE SAW KHURPI OR WEEDED GRASS AT THE SPOT OR NOT. THESE THINGS WERE NOT SO MUCH IMPORTANT THAT THE INVESTIGATING OFFICER SHOULD HAVE TRIED TO FIND THEM OUT UNLESS AND UNTIL SOMEBODY DISCLOSED ABOUT THE SAME TO HIM. THE ABSENCE OF KHURPI OR WEEDED GRASS CANNOT AFFECT THE STORY OF THE PROSECUTION. HENCE I AM NOT PREPARED TO DISBELIEVE THE. EVIDENCE OF PW 1 THAT HE WAS PRESENT AT HIS PLOT AT THE TIME OF OCCURRENCE. IT THEREFORE MEANS THAT THIS WITNESS COULD SEE THE OCCURRENCE AS STATED BY HIM." 11. THE HIGH COURT, HOWEVER, BY THE IMPUGNED JUDGMENT REJECTED THE WELL-REASONED FINDINGS RECORDED BY THE TRIAL COURT BY CRYPTIC OBSERVATIONS AS UNDER: "THUS THE FINDINGS OF THE LEARNED ADDITIONAL SESSIONS JUDGE THAT ALL THESE INFIRMITIES AND CONTRADICTIONS ARE NOT IMPORTANT AND IT DOES NOT ADVERSELY AFFECT THE PROSECUTION CASE IS NOT REASONABLE. THE REASONS GIVEN BY THE LEARNED ADDITIONAL SESSIONS JUDGE ARE NOT IN CONFORMITY WITH HUMAN NATURE. FROM THE EVIDENCE OF THE INFORMANT, THE CULTIVATION OF LAND BY HIM IS NOT CLEAR. THE OCCURRENCE HAS BEEN ALLEGED TO HAVE TAKEN PLACE SEVEN MONTHS AGO AND THE INFORMANT, IN PARA 12 OF HIS EVIDENCE, HAS STATED: TODAY ALSO MY FIELDS ARE BEING CULTIVATED BY BATAIDARS. THIS STATEMENT HAS BEEN RECORDED ON 20-3-1980, WHICH ALSO COVERS THE DATE 22-7-1979. THUS THE STATEMENT OF THE INFORMANT AS MADE IN PARA 12 IS QUITE OPPOSITE THAT ON 22-7-1979 I.E. THE DATE OF OCCURRENCE, HE HAD HIMSELF CULTIVATED HIS LAND. IF HE HAD NOT HIMSELF CULTIVATED HIS LAND, THERE B WAS NO NEED FOR HIM TO REMOVE GRASS FROM HIS FIELD. THUS THE NATURE OF THIS INCIDENT ITSELF APPEARS TO BE QUITE DOUBTFUL." 12. THE HIGH COURT ALSO FOUND FAULT WITH THE PROSECUTION CASE THAT THE INCIDENT HAD HAPPENED ON 22-7-1979 BUT THE POST-MORTEM EXAMINATION WAS HELD ONLY ON 24-7-1979 AT 11 A.M. AFTER 48 HOURS. ACCORDING TO THE HIGH COURT, NO EXPLANATION WAS OFFERED BY THE PROSECUTION. THIS FINDING IS ALSO BELIED BY THE RECORD. THE HIGH COURT ALSO FOUND FAULT WITH THE PROSECUTION CASE THAT THE INCIDENT HAD HAPPENED ON 22-7-1979 BUT THE POST-MORTEM EXAMINATION WAS HELD ONLY ON 24-7-1979 AT 11 A.M. AFTER 48 HOURS. ACCORDING TO THE HIGH COURT, NO EXPLANATION WAS OFFERED BY THE PROSECUTION. THIS FINDING IS ALSO BELIED BY THE RECORD. THERE IS AN AFFIDAVIT FILED BY THE CONSTABLE THAT THE DEAD BODY WAS HANDED OVER TO HIM ON 22-7-1979 AT 10.30 P.M. AND THE DEAD BODY REACHED KANPUR IN THE MORNING ON 23-7-1979. AS THERE WAS NO DOCTOR AVAILABLE TO CONDUCT THE POST-MORTEM, THE BODY WAS KEPT IN THE MORTUARY AND THE POST-MORTEM WAS CONDUCTED ON 24-7-1979. IN OUR VIEW, THIS IS A GOOD REASON TO HAVE REJECTED THE CONTENTION THAT THE POST-MORTEM WAS CONDUCTED AT A BELATED STAGE. BE THAT AS IT MAY, THESE FACTS HAVE NOWHERE SHAKEN THE OTHERWISE RELIABLE EYEWITNESSES OF THE PROSECUTION WITH REGARD TO THE FACTUM OF THE INCIDENT. THIS WAS ONE OF THE GROUNDS CONSIDERED BY THE HIGH COURT WHILE ACQUITTING THE ACCUSED. 13. REGARDING THE EVIDENCE OF PW 3 DESH RAJ, THE TRIAL COURT RECORDED IN PARA 28 AS UNDER: "THE STATEMENT OF DESH RAJ, PW 3 WAS ALSO CHALLENGED ON THE GROUND THAT HE STATED AT P. 4 THAT PW 1 CONTINUED TO RAISE ALARM FOR ABOUT HALF AN HOUR. IT SHOWS THAT THE WITNESS HAD NO IDEA OF TIME. HE IS AN ILLITERATE PERSON AND SIMPLY BECAUSE HE DEPOSED THAT WHEN HE REACHED THE SPOT PW 1 STOPPED RAISING ALARM, WHICH HE DID FOR HALF AN HOUR, HIS EVIDENCE CANNOT BE DISCARDED. IN THE MATERIAL PARTICULARS I DO NOT FIND ANY CONTRADICTION IN THE EVIDENCE OF PW 1 AND PW 3. IN ANY CASE FOR THE PURPOSE OF CORROBORATION TO THE STATEMENT OF PW 1 THE STATEMENT OF DESH RAJ, PW 3 IS SUFFICIENT." WE ENTIRELY AGREE WITH THE REASONING RECORDED BY THE TRIAL COURT. 14. PW 5 SMT JAI SHRI DEVI, WIFE OF THE DECEASED TURNED HOSTILE. IT IS ON G RECORD THAT SHE IS HAVING FIVE CHILDREN AND NOW RESIDING WITH HER PARENTS ALONG WITH HER CHILDREN. CONSIDERING THIS FACT THE TRIAL COURT HELD IN PARA 16 AS UNDER: "SMT JAI SHRI DEVI IS A YOUNG LADY OF 25 YEARS. SHE ADMITTED TO HAVE FIVE SMALL CHILDREN FROM HER DECEASED HUSBAND. IT IS ON G RECORD THAT SHE IS HAVING FIVE CHILDREN AND NOW RESIDING WITH HER PARENTS ALONG WITH HER CHILDREN. CONSIDERING THIS FACT THE TRIAL COURT HELD IN PARA 16 AS UNDER: "SMT JAI SHRI DEVI IS A YOUNG LADY OF 25 YEARS. SHE ADMITTED TO HAVE FIVE SMALL CHILDREN FROM HER DECEASED HUSBAND. SHE FURTHER ADMITTED THAT AFTER THIS MURDER SHE HAS BEEN LIVING AT HER FATHERS PLACE WITH HER H CHILDREN. SHE DENIED THE SUGGESTION OF THE PROSECUTION THAT THE ACCUSED THREATENED HER WITH DIRE CONSEQUENCES IF SHE DEPOSED AGAINST THEM BUT IN THE ABOVE CIRCUMSTANCES I FEEL THAT THIS SUGGESTION OF THE PROSECUTION IS NOT WITHOUT FORCE. THE FACT THAT THIS YOUNG LADY HAVING FIVE SMALL CHILDREN IS LIVING WITH HER FATHER IN ANOTHER VILLAGE IS A CLEAR INDICATION OF THE FACT THAT SHE DID NOT FIND IT SAFE TO LIVE IN THE HOUSE OF HER FATHER-IN-LAW. HENCE THE DEFENCE CANNOT GET ANY ADVANTAGE, OF ADMISSION, OF SMT JAI SHRI DEVI, WHO DEFINITELY TRIED TO CONCEAL THE TRUTH PROBABLY BECAUSE OF FEAR OF THE ACCUSED." 15. IN A NORMAL HINDU FAMILY IT IS UNTHINKABLE THAT THE DAUGHTER-IN-LAW WOULD DESERT THE IN-LAWS HOUSE WITH FIVE OF HER MINOR CHILDREN AFTER THE DEATH OF HER HUSBAND AND WOULD LIVE WITH HER PARENTS, UNLESS DRIVEN BY COMPELLING CIRCUMSTANCES TO DO SO. 16. IN OUR VIEW, THE REASONING RECORDED BY THE TRIAL COURT IS QUITE JUSTIFIED IN THE FACTS AND CIRCUMSTANCES OF THE CASE AND THE HIGH COURT HAS ERRED IN REJECTING THE SAID FINDING. 17. FOR THE REASONS AFORESTATED, THE APPEALS ARE ALLOWED. THE ACQUITTAL RECORDED BY THE HIGH COURT IS SET ASIDE. THE CONVICTION RECORDED BY THE TRIAL COURT IS RESTORED. THE RESPONDENTS ARE ON BAIL. THEIR BAIL BONDS AND SURETIES ARE CANCELLED AND THEY ARE DIRECTED TO BE TAKEN BACK INTO CUSTODY FORTHWITH TO SERVE OUT THE REMAINING PART OF SENTENCE. COMPLIANCE REPORT SHOULD BE SENT TO THIS COURT WITHIN ONE MONTH.