(Delivered by Hon'ble Vipin Sinha,J) Heard Sri S.K. Pal and Sri Sushil Kumar, learned counsel appearing on behalf of the accused-appellant and learned A.G.A. for the State. The present appeal was initially filed on behalf of the four accused-appellants, namely, Paras Singh, Badi Singh, Nanku Yadav and Sheo Kanth, however, during the pendency of the present appeal before this Court, appellant no. 1 Paras Singh and appellant no. 2 Badi Singh have already expired and their appeal stood abated vide order of this Court dated 05.12.2005. It has been brought on record that appellant no. 3 Nanku Yadav has also expired during the pendency of the present appeal before this Court and his appeal has also been abated vide order of this Court dated 23.09.2014. Thus, at present the appeal is being considered only on behalf of appellant no. 4 Sheo Kanth. The brief facts as they emerge are that an FIR was lodged on 29.05.1980 at 8:30 am at police station Kalyanpur, sub district Bindki, district Fatehpur with regard to one incident of 28.05.1980 which took place at village Duddi Kagar sometime at about 9:30 pm in the night. The FIR was lodged by Smt. Chandrawati as first informant being the wife of the deceased. The case of the prosecution as set up in the FIR, in short, is to the effect that in the night of 28.05.1980 Sri Shiv Prasad Pandey, husband of the first informant Smt. Chandrawati was at his tubewell in the west of village Doodhi Kagar, police station Kallyanpur where he was busy in the process of wheat threshing with the help of three labourers, namely, Chandrapal, Nankau and Horilal and at that time Vishambhar Nath, the brother-in-law (sala) of Shiv Prasad Pandey and Umakant were also present at the said tubewell; that it was moonlit night that Smt. Chandrawati, the first informant along with her daughter Km. Nirmala was going to her tubewell to give meal/food to her husband Shiv Prasad Pandey and her brother Vishambhar Das and as soon as she reached out of her village she heard three gun shots and also a hue and cry as a result of which she got horrified and hearing the sound, when she rushed towards her tubewell, she saw in the grove of Mangal and Bhola accused Paras Singh carrying a Gun, accused Badi Singh and Shiv Kanth carrying a Tamancha and accused Nankoo armed with Ballam, coming hurriedly from the side of the tubewell. It is said that the complainant and the daughter had hidden themselves behind a Mahuwa tree and heard the talks of the aforesaid accused persons saying "AAJ APNE RASTE KA KANTA SAF KAR DIYA"; that as soon as the aforesaid accused persons had passed away from that side, the complainant immediately rushed towards the tubewell and found her husband Shiv Prasad Pandey lying dead over the cot in a pool of blood. It was mentioned in the written report by the complainant that since there was long standing enmity between the family of the complainant and the accused persons, accordingly, the murder has been committed by the accused persons. On the basis of the said written report, the case was registered at the police station and it was investigated by S.I. R.P. Tripathi of police station Kallyanpur, who after completing the entire investigation, submitted the chargesheet against the aforesaid four accused persons under Section 302 IPC. The court below had charged all the four accused persons under Section 302 IPC read with section 34 IPC, however all the accused persons denied the charge and pleaded false implication. At the very outset it may be submitted that all the three persons/labourers named in the FIR, namely, Chandrapal, Nankau and Horilal neither they were produced nor they were examined, however, on behalf of the prosecution Smt. Chandrawati wife of the deceased Shiv Prasad Pandey was examined as PW-1 who has supported the FIR. She deposed that "there was an enmity between the accused persons and the family of the complainant on account of which the drastic act has been committed. She deposed that "there was an enmity between the accused persons and the family of the complainant on account of which the drastic act has been committed. The motive as attributed by Smt. Chandrawati in her statement can be explained in the following manner:- Motive as against appellant no.1 Paras Singh is that son of Paras Singh was married to the daughter of late Vijay Karan Singh (15/16 years after the murder of Vijay Karan Singh). Shri Kishan, brother of Smt. Chandrawati (PW1), was implicated in the said murder. Shiv Prasad, the deceased, used to do Pairvi in the said case. (Shri Kishan being his brother-in-law (Sala). Shri Kishan ultimately got acquitted. Vijay Karan Singh is the cousin brother of Munnu Singh, who happens to be father of Badi Singh (Appellant No.2). Laxman and Sukhdev are the uncle (Chacha) of Vijay Karan Singh. Naval is the son of brother-in-law of Laxman. Laxman, Sukhdev and Naval had beaten the deceased with regard to which a report was lodged and ultimately they were convicted and sentenced for six months imprisonment. Munnu Singh father of accused/appellant no.2 Badi Singh is the cousin brother of Vijay Karan Singh. Motive as against appellant no. 2 Badi Singh is that deceased Shiv Prasad had brought a land from one Shiv Balak Singh in the name of his son Vinay Kumar. Munnu Singh is the father of the Badi Singh had filed objections in the mutation proceedings. Munnu Singh is the cousin brother of Vijay Karan Singh. However, the objection was rejected. Motive as against appellant no. 3 Nanku Yadav and appellant no. 4 Sheo Kanth is that one month prior to the occurrence that a gun belonging to the deceased was stolen with regard to which the deceased had lodged an FIR in which Nanku, Sheo Kanth and four others were named and the proceedings under Section 107/116 Cr.P.C. were also initiated by the deceased against the persons including accused Paras Singh. Vishambhar Nath (PW5) is the brother of first informant Chandrawati (PW1). Umakant (PW2) is the brother-in-law (sala) of Shiv Karan (brother of PW1). Sister of Umakant is married to Shiv Karan, who is the brother of PW1 Chandrawati. Km. Nirmala is the daughter of the deceased Shiv Prasad and Smt. Chandrawati (PW1). Badi Singh and Paras Singh are living in the same house though in different portion. Umakant (PW2) is the brother-in-law (sala) of Shiv Karan (brother of PW1). Sister of Umakant is married to Shiv Karan, who is the brother of PW1 Chandrawati. Km. Nirmala is the daughter of the deceased Shiv Prasad and Smt. Chandrawati (PW1). Badi Singh and Paras Singh are living in the same house though in different portion. Shivkant and Nanku are also friends of Paras Singh and are having family terms with Paras Singh. Manohar Lal is the brother-in-law of Vinay Kumar, who is the son of the deceased Shiv Prasad and Smt. Chandrawati (PW1). Umakant is also the brother-in-law of Vishambhar Das. It may also be appreciated that the FIR regarding the missing of the gun and proceedings under Section 107/116 are also available on record. She has further stated that on the date of occurrence, she along with her daughter km. Nirmala was going to the tubewell carrying meals for her husband and Vishambhar Das who were busy at the field near the tubewell in the process of threshing of wheat; that her husband had taken meal at about 2:30 or 3:00 pm in the afternoon; that as she reached near the tubewell she heard three gun shots and she had hidden behind the Mhuwa tree along with her daughter and had seen the accused persons duly armed as mentioned in the FIR; that thereafter, she became unconscious and when she regained consciousness after about half an hour, she had asked Umakant etc. for lodging the FIR but as they were afraid after seeing such an incident they refused to go to the police station in the night to lodge the FIR; that Manohar Lal arrived at the spot thereafter a report was written. Manohar Lal is the brother-in-law of Vinai Kumar son of the first informant; that thereafter along with Manohar Lal she had gone to lodge the FIR. Umakant was examined as PW-2. In his statement, he stated that he is the brother-in-law (sala) of Shiv Karan (brother of Shrikrishan) who was the brother of the complainant. Manohar Lal is the brother-in-law of Vinai Kumar son of the first informant; that thereafter along with Manohar Lal she had gone to lodge the FIR. Umakant was examined as PW-2. In his statement, he stated that he is the brother-in-law (sala) of Shiv Karan (brother of Shrikrishan) who was the brother of the complainant. He had deposed that in the year 1980 there was a drought in his village Dehvli Buzurg, police station Jafarganj, District Fatehpur which caused a problem of fodder to the cattle and hence, he along with his 10 she-buffaloes came to village Doodhi Kagar; that during the day he used to graze his cattle in Katri along the bank ganges and in the night he used to stay at the tubewell of Shiv Prasad Pandey; that in the morning he used to take his meals at the house of Shiv Prasad Pandey and in the evening he used to take milk and eat Peda. He also stated that since his sister was married to Shiv Karan in village Doodhi Kagar where Shiv Karan was brought up and got married by Shiv Prasad Pandey, he frequently visited village Doodhi Kagar and at times used to stay there for 10 to 15 days at a stretch and thus he knew the persons of village Doodhi Kagar very well. PW-2 has stated that Shiv Prasad Pandey was the brother-in-law of his brother-in-law; that at the relevant date and time he was at the tubewell of Shiv Prasad Pandey along with Vishambhar Nath, Chandrapal, Horilal and Nakau. He deposed that Nankau Horilal and Chandrapal were threshing the wheat of Shiv Prasad Pandey and did this work up to 9 pm and thereafter, on account of the break down of electricity, the threshing work had stopped and then Shiv Prasad Pandey and Vishambhar Das lay down over their respective cots; PW-2 lay down on the ground near the Mahuwa tree in the north of Kothri of tubewell and that Chandrapal, Horilal and Nankau were lying down on the ground near the thresher. He deposed that at about 9:30 pm the accused Paras Singh armed with gun, Badi Singh and Shiv Kanth armed with tamanchas and Nankau armed with a Ballam arrived at the spot from his north eastern side and as soon as they arrived there, accused Paras Singh uttered "AJ SARE SHIV PRASADWA TOHARE KA MAR KE APNE ZINDGI KA KATA SAF KAR LENGE" and then the three accused simultaneously fired from their respective weapons upon Shiv Prasad and accused Nankoo had beaten the deceased from his Ballam using it from the blunt side. He stated that he along with other raised a hue and cry and that all the accused persons after doing the above referred act went away towards the east, and after the accused had left, the complainant Smt. Chandrawati along with her daughter Nirmala Devi came at the scene of occurrence along with the food; that Smt. Chandrawati asked the other persons present at the spot to accompany them to the police station to lodge the FIR but they were not ready on account of terror in the minds of the persons, who had been present at the spot at the time of occurrence and therefore Smt.Chandrawati went to lodge the first information report at the police station in the morning. Const. Moharrir of police station Kalyanpur was examined as PW-3. He stated that on the said date at about 8:30 am Smt. Chandrawati had submitted a written report at the police station on the basis of which the chick FIR was prepared by him and the case was registered vide G.D. No. 7 dated 29.05.1980 which is in his hand writing and signature. The said PW-3 has proved the chick FIR Ext. Ka-2 and the extract of G.D. No. 7 dated 29.05.1980 as Ext. Ka-3. Dr. J.S. Roy was examined as PW-4. He stated that on 30.05.1980 he was Medical Officer, District Hospital, Fatehpur and on the said date at about 12:30 pm he had conducted the postmortem examination of the dead body of Sri Sheo Prasad; that according to him, the deceased was aged about 58 years and at the time of postmortem examination one and a half day had passed to his death and at the time of postmortem, the following anti-mortem injuries were found:- "1. Gun shot wound of entrance 1'' x 1'' x brain cavity deep front of middle of head. Gun shot wound of entrance 1'' x 1'' x brain cavity deep front of middle of head. Margins inverted lacerated. Margins blackend 2'' from the base of nose. Frontal fractured. 2. Gun shot wound of exit 2.1/2'' x 2'' x bone deep on below the chin. Margins lacerated, Everted. No Blackening seen. Mandible bone fractured. Injury no. 1 and 2 are inter communicating downward slightly outward to left. 3. Lacerated wound 1'' x ½'' skin deep on right side of middle of head 4.1/2'' from right ear. 4. Lacerated wound 1.1/4'' x ½'' x muscle deep on upper lip. 5. Two gun shot wounds of entrance each ½'' x ¼'' x skin deep 1/3'' apart on right side of the fore-head just near the lateral end of right eye brow. Margins lacerated inverted. No blackening no tattooing seen. 6. Lacerated wound 1.1/4'' x ½'' x bone deep right side of face just over the right side part of mandible. 7. Gun shot wound of entrance ¾'' x ¼'' x cavity deep 1.1/3'' at 3 O'clock posterior to right nipple front of chest. Margins lacerated inverted. Margins blackened. 4th rib fractured. 8. Gun shot wound of exit ½'' X ½'' x cavity deep. Back of upper part of left abdomen 7.3/4'' above the liac bone. Margins lacerated everted. No blackening no tattooing seen injury no. 7 and 8 are inter communicating. Direction from right to left back downward. N.B.: After thorough search in body, no pellet or shot or any wadding piece recovered in the body. The report of PW-4 about the internal examination of the body was as below:- Neck Scalp: as injury described. Skull: front of right temporal maxilla fractured. Membranes: Lacerated. Brain: Liquid, Blood stains. Base: Fractured. Vertebrae: N.A.D. Spinal Cord: Not opened. Thorax Walls, ribs, cartilages: as injury described, 4th right rib 12th left rib fractured. Right Lung: Lacerated Left Lung: Lacerated Pericardium: Lacerated. Heart : Lacerated, 5 oz. Abdomen 6 oz. Semi-digested food was present in the stomach, small quantity of digested food was present in small intestines and large intestines were filled with gas and faecal matter and about 2 oz. Urine was present in the bladder. PW-4 deposed that the case of death of Sheo Prasad was shock and haemorrhage on account of the injuries described above." PW-5 is Vishambhar Nath. He is the real sala of deceased Sheo Prasad Pandey. Urine was present in the bladder. PW-4 deposed that the case of death of Sheo Prasad was shock and haemorrhage on account of the injuries described above." PW-5 is Vishambhar Nath. He is the real sala of deceased Sheo Prasad Pandey. He has supported the case of the prosecution as set up in the FIR and has also corroborated the statement of Smt. Chandrawati and Umakant. He further deposed that he had taken Sanyas about 40 years ago but used to visit village Dudi Kagar for the last about 40 years; that at one time in a day he used to take his meals at the house of Sheo Prasad deceased and in the evening he often used to take milk or eat Peeda and sometimes he used to take evening meals also which were brought from the house of Sheo Prasad Pandey deceased. He stated that in the night of the occurrence he was at the tubewell of his brother-in-law Sheo Prasad deceased; that the process of wheat threshing continued upto 9:00 pm with the help of Chandrapal, Nankau and Horilal and at about 9:00 pm owing to break down of electricity the threshing work was stopped and the three labourers Nankau, Horilal and Chandrapal lay down near the threshing of the wheat, Sri Sheo Prasad Pandey lay down over a cot in the north of the Kothri and he himself was in the south of Sheo Prasad deceased at a distance of about 2 or 3 paces and that PW-2 Uma Kant was also there at that time. PW-5 further stated that it was a full moon lit night being Puran Masi and after he had slept, he suddenly heard the noise of three discharges of fire arms and when he woke up he found accused Paras Nath armed with a gun, Sheo Kanth and Badi Singh armed with Tamanchas and accused Nankau armed with a Ballam standing near the cot of Sheo Prasad deceased. He deposed that Uma Kant, Hori Lal, Nankau and Chandra Pal had raised a hue and cry uttering the words "PANDEY KA MAR DAREN". PW-5 added that when he asked the accused persons as to why they were still standing there, accused Paras had replied "SHEO PRASAD KO MAR KAR JANAM BHARE KA KANTA SAF KAR DIYA" and also uttering to PW-5 "GERUWA WASTRA PAHNE HO TUMAHUM KO MAR DEBE". PW-5 added that when he asked the accused persons as to why they were still standing there, accused Paras had replied "SHEO PRASAD KO MAR KAR JANAM BHARE KA KANTA SAF KAR DIYA" and also uttering to PW-5 "GERUWA WASTRA PAHNE HO TUMAHUM KO MAR DEBE". PW-5 also stated that all the accused thereafter went away towards the village and subsequent thereto when he attended his brother-in-law Sheo Prasad, he found him already dead and at that time he had seen the injuries on the person of Sheo Prasad from which the blood was oozing out over the Kathri on the cot where Sheo Prasad was lying. PW-5 further stated that immediately thereafter his sister PW-1 Smt. Chandrawati along with her daughter Km. Nirmala arrived at the spot along with evening meals and when the incident was narrated to her she wept and became unconscious. PW-6 is Sri R.P. Tripathi who has deposed that in the month of May 1980 he was S.O. of PS Kalyanpur; that on 29.05.1980 the present case was registered in his presence and as such he started the investigation of the same and after recording the statements of PW Chandrawati and Manohar Lal under Section 161 Cr.P.C.; that thereafter he proceeded along with some of the subordinates and the relevant documents to the place of occurrence and reached there at about 10.50; that after reaching the spot he took the dead body of Sheo Prasad Pandey in his custody, prepared the panchyatnama of the dead body in the presence of the panchas after noting down the injuries of deceased Sheo Prasad Pandey found on his person and got the Panchayatnama signed by the Panchas. This Panchayatnama has been proved by PW-6 as Ext. Ka-8. On behalf of the accused persons two witnesses were examined, namely, DW-1 Abdul Quddus Khan, Lekhpal and DW-2 Uma Shankar Tripathi, Headmaster, Higher Secondary School, Govindpur, P.S. Kalyanpur, District Fatehpur. DW-1 has filed an extract of Khatauni 1388 to 1393 Fasli of village Dudi Kagar, h/o Mawaiya Tehsil Bindki to show that Munnu alias Durga Prasad son of Ambika Prasad and Sheo Prasad deceased were co-tenants in Khata no. 48 plot no. 356 of the village. DW-1 has filed an extract of Khatauni 1388 to 1393 Fasli of village Dudi Kagar, h/o Mawaiya Tehsil Bindki to show that Munnu alias Durga Prasad son of Ambika Prasad and Sheo Prasad deceased were co-tenants in Khata no. 48 plot no. 356 of the village. DW-2 Uma Shankar Tripathi, is the Headmaster, Higher Secondary School, Govindpur, P.S. Kalyanpur, District Fatehpur and has stated that Bharat Bindu son of Sheo Prasad Pandey r/o Dudi Kagar was a student of his school having been admitted in Class VI on 01.07.1978; that he passed Class VI on 20.05.1979 and took admission in Class VII on 01.07.1979, passed Class VII on 20.05.1980 and his name was enrolled in Class VIII of the school at page 376 of the scholar register; that Bharat Bindu ceased to be the student of the above said institution from 17.07.1980. Learned counsel for the appellants has strongly contended that the presence of Smt. Chandrawati is quite doubtful and she being a Pardanasheen lady, it is not possible to believe that she was carrying meals/food at about 9:30 pm in the night for her husband and her brother. A number of discrepancies have also been pointed out in the statement of Smt. Chandrawati, however, the fact remains that there is nothing unnatural in the testimony of PW-1. In her statement, she has stated that her husband left the house in the afternoon for the field, and thus, it is apparent and quite natural for her to go to the field carrying meals/food at night for the husband who was working in the field. A plea has been taken by the defence that her son Bharat Bindu was present in the village on the date of occurrence placing reliance on the testimony of DW-2 the Head Master that since Smt. Chandrawati was a Pardanasheen lady and her son Bharat Bindu was present in the village, hence, it is not probable that Smt. Chandrawati would carry the meals whereas it is more probable that Bharat Bindu, a male member would have gone to the field at night. However, the fact remains that PW-1 had reached the place of occurrence just after the murder has been committed. This has been duly supported by PW-5. However, the fact remains that PW-1 had reached the place of occurrence just after the murder has been committed. This has been duly supported by PW-5. Even if, the case of the defence is believed the mere fact that Bharat Bindu had not gone to carry the meals or that the male member who was present in the family did not come to the house to take the food it cannot by any stretch of imagination dislodge the consistent testimony of PW-1. It has further been contended that the presence of PW-2 Umakant is also not probable as he belongs to a different village, namely, Dewari Bujurg, police station Jafrganj, district Fatehpur. However, there is ample evidence on record to show that Umakant is the brother-in-law of Shiv Karan who is the brother of PW-1 and in fact sister of Umakant is married to Shiv Karan, who is the brother of PW-1 Smt. Chandrawati. In his statement PW-2 has clearly stated that he had come along with his 10 she-buffalow to village Doodhi Kagar; that during the day he used to graze his cattle in Katri along the bank of the ganges and in the night he used to stay at the tubewell of Shiv Prasad Pandey. PW-2 has also clearly stated that since his sister was married to Shiv Karan in village Doodhi Kagar where Shiv Karan was brought up and got married by Shiv Prasad Pandey and the marriage of Shiv Karan with his sister was also performed by deceased Shiv Prasad Pandey and in view of this relation with Shiv Prasad Pandey he had come to stay at the tubewell. The version of PW-2 that his brother-in-law and Shiv Karan was brought up the by deceased and the marriage of Shiv Karan with his sister was performed by the deceased remains unrebutted on record. In his statement PW-2 has consistently supported the case of the prosecution, he being the most natural witness whose presence at the spot cannot be doubted. He has clearly supported the statement of the other eye witness, namely, Vishambhar Nath. In his statement PW-2 has consistently supported the case of the prosecution, he being the most natural witness whose presence at the spot cannot be doubted. He has clearly supported the statement of the other eye witness, namely, Vishambhar Nath. He in his statement has deposed that:- **4- yxHkx lk5- vkrs gh ikjl flag oxSjg us vkokt yxkbZ fd vkt lkjs f'ko izlknok rksg[kk ekj ds viuh ftUnxh ds jkLrs dk dkaVk lkQ dj ysxsaA eqfYteku e`rd dh pkjikbZ ls eqf'ey ls 2&3 gkFk ij Fks tc mu yksxksa us vkokt yxkbZ fd vkt lkys tku ls ekj MkysaxsA eqfYteku dh yydkj ij fo'kEHkj nkl mBdj cSB x,A vkokt fn;k vkSj rqjUr ikUMs th ij Qk;j dj fn;k og pkjikbZ ls mB ugh ik;saA eqfYteku ds vkokt yxkrs gh eSus vkSj fo'kEHkj nkl us ikUMs th dks cpkus dh dksf'k'k dh ysfdu ikjl flag oxSjg us vkokt yxkbZ **gkV vkxs u c - It may also be appreciated that PW-1 has also stated in his statement that Umakant had come to the village about 2 months before the date of occurrence. As far as PW-5 Vishambhar Nath is concerned, he stated that he had taken Sanyas about 40 years ago. He is the brother of the first informant Smt. Chandrawati and brother-in-law of the deceased; that he had his own 'Kuti' in the south of the tubewell of the deceased at a distance of about 8 or 10 fields; that sometimes he used to stay at his Kuti and sometimes at the tubewell of Sheo Prasad Pandey deceased. PW-5 is residing with the deceased for the last about 2 or 3 months and has given a consistent version of the occurrence. Thus, in view of the consistent statement of PW-1 Smt. Chandrawati, PW-2 Umakant and PW-5 Vishambhar Nath it cannot be doubted that they were not present at the place of occurrence and Smt. Chandrawati had not arrived immediately after the occurrence. All the three witnesses have supported each other and the defence has failed to dislodge their testimony in any manner whatsoever. Learned counsel for the appellants further contended that there is a delay in lodging of the FIR and also the fact that Manohar Lal could not come at the spot in the morning. All the three witnesses have supported each other and the defence has failed to dislodge their testimony in any manner whatsoever. Learned counsel for the appellants further contended that there is a delay in lodging of the FIR and also the fact that Manohar Lal could not come at the spot in the morning. However, there is ample evidence on record to show that Smt. Chandrawati after the incident who had arrived at the place of occurrence had initially fainted and after regaining consciousness, she had requested PW-2 and PW-5 to accompany her to the police station, however, both the said eye witnesses have refused as they were terrified after seeing such a horrifying incident by their own eyes. Moreover, it was not deemed fit to leave the body lying and it was only in the morning that Manohar Lal who was the brother-in-law of the son of the complainant to whom the first information report was dictated and thereafter Smt. Chandrawati went to the police station accompanied by Manohar Lal after completing 8 miles by foot on 29.05.1980. The fact that the complainant was accompanied by Manohar Lal to the police station is substantiated by G.D. no. 7 of dated 29.05.1980 Ext. Ka-30. The presence of Manohar Lal at the police station is not disputed. The fact remains that Manohar Lal had come at the place of occurrence in the morning and had prepared the written report at the dictation of PW-1 Smt. Chandrawati and had thereafter accompanied PW-1 to the police station and thus, the mere fact that the other male members i.e. PW-2 and PW-5 had not accompanied the complainant to the police station will not dislodge the testimony of the witnesses of the prosecution. Learned counsel for the appellants had placed much reliance on the medical report inasmuch as the report says that ^^vkek'k; esa 6 vkWl v/kipk [kkuk ekStwn FkkA NksVh vkWr esa FkksMk lk ipk gqvk [kkuk ekStwn FkkA cMh vkWr ey o xSl ls Hkjh gqbZ FkhA is'kkc dh FkSyh esa 2 vkWl is'kkc Hkh FkkA^^ Learned counsel for the appellants further submits that the fact that semi-digested food was present would show that the incident must have occurred sometime in the middle of the night and thus the entire prosecution story is false. He has also drawn the attention of the Court which is to the effect which has come in the statement of Umakant that:- ^^tc pUnzkorh ekSdk ij igqWph ml le;lc yksx dkBjh ds ckgj FksA 'kke dks gekjs lkFk nks yVVw NksVs NksVs (ihaMk) f'ko izlkn us [kk;s FksA eSus f'ko izlkn us lkr lk The question of fixing the time of death with regard to the presence of semi-digested food has been considered by the Hon'ble Apex Court in the case of Jitender Kumar v. State of Haryana with Sunil Kumar & Anr. v. State of Haryana reported in AIR 2012 SC 2488 which as follows:- "38. The entire basis for this submission is the statement of PW3, Dr. L.L. Bundela, who stated that the stomach of the deceased contained some semi-digested food. It is worthwhile to note that the statement of this very witness that the death of Indra could have taken place between 1.00 to1.30 a.m. remained unchallenged. Furthermore, it cannot be stated as a rule of universal application that after a lapse of two to three hours stomach of every individual, without exception, would become empty. It would depend upon a number of other factors like the caloric content and character of the solid food. Further, addition of fats, triglycerides and carbohydrates such as glucose, fructose and xylose to a solid meal can delay its emptying from the stomach, presumably because of their effect on the initial lag phase of digestion of solids. Furthermore, the presence of liquids in the stomach prolongs this initial lag phase of solid emptying. In fact, ingestion of a liquid bolus 90 minutes after a solid meal can induce a second lag phase of solid emptying from the stomach. Foods high in fat content are handled duly by the stomach and their emptying pattern should be considered separately from those of other liquids and solids. Many foods are solid or semi-solid prior to their ingestion. However, after they are consumed and warmed to the body temperature in the stomach, they are converted into a liquid. Despite this, the liquid foods are emptied from the stomach much more slowly than are the aqueous liquids. This aspect has been dealt with by prominent authors on the subject with definite emphasis on emptying of stomach. However, after they are consumed and warmed to the body temperature in the stomach, they are converted into a liquid. Despite this, the liquid foods are emptied from the stomach much more slowly than are the aqueous liquids. This aspect has been dealt with by prominent authors on the subject with definite emphasis on emptying of stomach. The gastric emptying of indigestible solids have been appropriately dealt with in the Textbook of Gastroenterology, Volume One, by Tadataka Yamada, David H. Alpers, Chung Owyang, Don W. Powell and Fred E. Silverstein, as follows: "Gastric Emptying of Indigestible Solids The final class of consumed components of a meal to be discussed are the indigestible solids, that nonnutritive fibrous debris remaining from a meal that is not emptied with the dispersible, calorie-containing digestible solids. In general, indigestible solids exist the stomach with initiation of the gastric phase III activity of the MMC after completion of the fed motor pattern. The main characteristic that distinguishes the phase III motor pattern from fed motor activity is the presence of an open pylorus during fasting, which permits intestinal delivery of large particles. The major factor in determining when an indigestible solid is emptied from the stomach is its size. Indigestible spheres smaller than 1mm in diameter freely pass into the intestine during the fed period, often at rates faster than solid nutritive food. Larger spheres pass more slowly, usually after an initial lag period, with spheres up to 2.4 mm in diameter passing with the calorie-containing components of a solid meal. Spheres as large as 7 mm do not empty with solid food at all and are retained until gastric phase III activity resumes in the inter digestive period. It has been reported that undigested materials as large as 2 cm in diameter can pass into the intestine during the fasting period under normal conditions. Other physical factors play a role in determining the gastric emptying of indigestible solid material. 39. "Besides the above, with regard to the external regulation of gastric emptying, it has been stated that in addition to being controlled by various characteristics of the ingested bolus within the stomach, there is extensive modulation of gastric emptying by external influences. Gastric motility and emptying is also subject to extensive modulation by the central nervous system. The nutritional properties of an ingested liquid modify the speed at which it exits the stomach. Gastric motility and emptying is also subject to extensive modulation by the central nervous system. The nutritional properties of an ingested liquid modify the speed at which it exits the stomach. Because of this, carbohydrate, protein or fat containing liquids can be digested and absorbed completely prior to reaching the distal small intestine. Certain physical characteristics of the ingested meal may alter the function of the stomach to selectively retain or expel the large particles. If the viscosity of the meal is increased sufficiently, the ability of the stomach to discriminate between large and small particles is abolished and much larger particles may be delivered into the duodenum. 40. The above findings are based on medical studies and are well-established in the field of gastroenterology. 41. It may be useful at this stage to refer to Modi's 'Medical Jurisprudence and Toxicology', Twenty Third Edition, which has specifically concluded that there is no absolute and definite standard that every human being would empty his stomach within two to three hours of taking the meals, irrespective of what kind of meal had been taken by the concernedperson. 42. Judging the time of death from the contents of the stomach, may not always be the determinative test. It will require due corroboration from other evidence. If the prosecution is able to prove its case beyond reasonable doubt and cumulatively, the evidence of the prosecution, including the time of death, is proved beyond reasonable doubt and the same points towards the guilt of the accused, then it may not be appropriate for the Court to wholly reject the case of the prosecution and to determine the time of death with reference to the stomach contents of the deceased. 43. While discussing various judgments of this Court, Modi in the aforesaid book at page 543 has recorded as under: - ".The state of the contents of the stomach found at the time of medical examination is not a safe guide for determining the time of the occurrence because that would be a matter of speculation, in the absence of reliable evidence on the question as to when the deceased had his last meal and what that meal consisted of [Masjit Tato Rawool v. State of Maharashtra, (1971) SCC (Cr.) 732; Gopal Singh v. State of Uttar Pradesh, AIR 1979 SC 1932; Sheo Darshan v. State of Uttar Pradesh, (1972) SCC (Cr) 394]. The presence of faecal matter in the intestines is not conclusive, as the deceased might be suffering from constipation. Where there is positive direct evidence about the time of occurrence, it is not open to the court to speculate about the time of occurrence by the presence of faecal matter in the intestines [Sheo Dershan v. State of Uttar Pradesh (1972) SCC (Cr.) 394]. The question of time of death of the victim should not be decided only by taking into consideration the state of food in the stomach. That may be a factor which should be considered along with other evidence, but that fact alone cannot be decisive[R. Prakash v. State of Uttar Pradesh (1969) 1 SCC 48 , 50] 44. Such an approach would even otherwise be justifiable as in some cases the evidence may not be sufficient to establish as to what the last meal was and what article of food, if any, was taken by the deceased. So also, the 'sluggish chronometric sense of the countryside community of India is notorious' and even urban folk make mistakes about time, when there is no particular reason to observe and remember a minor event like taking of a morning meal. In such circumstances where semi-digested food was found in the stomach, the contention, that it must be inferred from it that the occurrence must have taken place after the deceased had taken his evening meal may not be accepted. 45. This Court in the case of Shivappa v. State of Karnataka [(1995) 2SCC 76] stated the dictum that medical opinion is admissible in evidence like all other types of evidence and there is no hard-and-fast rule with regard to appreciation of medical evidence. It is not to be treated as sacrosanct in its absolute terms. Agreeing with the view expressed in Modi's book on Medical Jurisprudence and Toxicology, this Court recorded that so far as the food contents are concerned, they remain for long hours in the stomach and the duration thereof depends upon various other factors. Indisputably, a large number of factors are responsible for drawing an inference with regard to the digestion of food. It may be difficult, if not impossible, to state exactly the time which would be taken for the purpose of digestion. 46. Indisputably, a large number of factors are responsible for drawing an inference with regard to the digestion of food. It may be difficult, if not impossible, to state exactly the time which would be taken for the purpose of digestion. 46. Similarly, in the case of Jabbar Singh v. State of Rajasthan [(1994)SCC (Cr.) 1745], the Court while dealing with the evidence of DW-1 who had opined that since there was some semi-digested food, the occurrence must have taken place earlier and not at 3.00 a.m. The Court reiterated the principle that this was an opinion evidence and the possibility of the deceased having eaten late in the night could not be ruled out. 47. In view of the above medical references, the view expressed in Modi's book (supra) and the principles stated in the judgments of this Court, itcan safely be predicated that determination of the time of death solely with reference to the stomach contents is not a very certain and determinative factor. It is one of the relevant considerations. The medical evidence has to be examined in light of the entire evidence produced by the parties. It is certainly a relevant factor and can be used as a significant tool by the Court for coming to the conclusion as to the time of death of the deceased but other factors and circumstances cannot be ignored." Learned A.G.A. has also strongly contended that the presence of PW-1 and PW-5 is most natural and has been sufficiently explained by the evidence on record and their testimony has not been dislodged in any manner whatsoever by the defence and even if there are some discrepancies in the statement of Smt. Chandrawati who is a rustic lady, no benefit can be achieved by the accused-appellants. There is also ample evidence on record to show the presence of each of the accused-persons named in the FIR at the place of occurrence and also their participation in the actual crime committed. The medical report also corroborates the case of the prosecution. Thus, in view of what has been discussed above, no case for interference is made out and, accordingly, the present appeal is dismissed. Copy of the order be supplied to the court concerned for necessary action and compliance. ——————