Hon'ble Rakesh Tiwari,J. Hon'ble Mrs. Vijay Lakshmi,J. ( Delivered by Hon. Rakesh Tiwari,J.) Heard Sri V.P. Srivastava, senior counsel assisted by Sri Love Srivastava for the appellant and Kumari Meena and Sri Pradeep Pandey, A.G.A. for State respondent. This criminal appeal is preferred against the judgment and order dated 29.3.1991 passed by VIth Additional Sessions Judge, Agra in S.T. No. 264 of 1988, State Vs. Fateh Singh and another, under section 302/34 IPC. Facts of the case in nutshell are that on 19.10.1987 the complainant's husband Ram Ratan Singh and her son Parsu Ram had taken their cattle for grazing in the limits of their village Guhi, a hamlet of Rampur, P.S. Pidhaura, district Agra. At about 11 A.M., when complainant - Ram Kumari reached at the spot where her husband and son were grazing the cattle, to give them food, she saw accused appellants- Fateh Singh armed with an axe and Ram Kishore armed with a ballam, were causing injuries to her husband and son. She raised alarm and cried for help, whereupon Ram Murari Singh, Bare Lal and some other persons reached at the spot. On seeing them, the accused appellants ran away with their arms towards Behar. They were chased but they managed to escape. As condition of injured Ram Ratan Singh was serious, he was taken for treatment to hospital at Bah, from where he was referred for treatment to the hospital at Agra. While he was being taken to hospital at Agra, Ram Ratan Singh died and his dead body was brought back to the village. The complainant-widow of Ram Ratan Singh got report of the incident written by Ram Murari Singh and lodged a FIR at police station Pithaura. Investigation of the case was taken over by S.O. Ram Kishan Manik, who was present at the police station at the time of registration of the case. The Investigating Officer recorded statement of Head Moharrir and Smt. Ram Kumari at the police station itself. Thereafter, I.O. reached the place of incident alongwith SI Gajraj Singh and other. There he recorded statement of Ram Murari Singh and Parsu Ram-injured son of the deceased. Panchayatnama /inquest report , chalan lash, photo lash and letter to the C.M.O. for postmortem examination were prepared. Cadaver of the deceased alongwith necessary papers and blood stained clothes of the deceased were sent alongwith letter for postmortem examination. There he recorded statement of Ram Murari Singh and Parsu Ram-injured son of the deceased. Panchayatnama /inquest report , chalan lash, photo lash and letter to the C.M.O. for postmortem examination were prepared. Cadaver of the deceased alongwith necessary papers and blood stained clothes of the deceased were sent alongwith letter for postmortem examination. The IO prepared site plan of the place where the dead body of the deceased was kept as well as of the place of incident. He also prepared fard of the blood stained earth and simple earth. Postmortem examination on the cadaver of deceased Ram Ratan Singh was conducted by Mr. M.L. Verma at district Hospital, Agra and he found the following ante mortem injuries: 1. Lacerated wound 10 cm x 1 1/2 cm, x bone deeep on right side of forehead and upper part of face and right temporal region. Would oblique. 2. Lacerated would 8 cm x 2 cm x bone deep on the front of forehead extending to left side of forehead. 3. Lacerated wound 7 cm x 2 cm x bone deep on right side face extending upto side of the nose. 4. Punctured wound 1/2 cm x 1/2 cm x bone deep on the right temporal region 2 cm. opposite the root of right ear. 5. Traumatic swelling 5 cm x 3 cm on the outer side of upper part of left side forearm near the elbow. 6. Multiple abrasions in an area of 10 cm x 2 cm on the lower part of back along the mid line. 7. The frontal bone is fractured. 8. The temporal bone (right side) is fractured. In the opinion of the doctor, the deceased died due to coma as a result of head injury. After completion of investigation, charge sheet was submitted against the accused appellants. The case was committed to the court of session where it was registered as session trial no. 264 of 1988. Charges under section 302/34 IPC were framed against the accused which they denied and claimed to be tried. In support of its case, the prosecution examined P.W.1- DR. M.L. Verma, P.W.2-Ram Kumari-widow of the deceased, P.W.3- Parsu Ram-son of the deceased, P.W.4- Head Constable Jagdish Saran, P.W.5-Constable Kamal Kishore andP.W.6-IO Ram Kishan Singh. 264 of 1988. Charges under section 302/34 IPC were framed against the accused which they denied and claimed to be tried. In support of its case, the prosecution examined P.W.1- DR. M.L. Verma, P.W.2-Ram Kumari-widow of the deceased, P.W.3- Parsu Ram-son of the deceased, P.W.4- Head Constable Jagdish Saran, P.W.5-Constable Kamal Kishore andP.W.6-IO Ram Kishan Singh. The accused appellants in their statement under section 313,Cr.P.C. stated that they have been falsely implicated due to enmity and did not produce any evidence in defence. After appreciation of the evidence and material on record, the trial court convicted the accused appellants under section 302/34 IPC and sentenced them to life imprisonment thereunder, by the impugned judgment and order. Counsel for the appellants has assailed the impugned judgment contending that place of occurrence was not established by the prosecution; that there are material contradictions in the statements of eye witnesses; that there was no motive for the accused to commit the offence; that Investigating Officer has shown a different place in the site plan; that all witnesses are relatives of the deceased and they did not receive any injury which rules out their presence at the time and place of the incident; that blood stained earth was not sent for chemical examination and that semi digested food found in the stomach of the deceased, makes the prosecution story regarding the incident highly improbable. The impugned judgment is also assailed on the ground that findings recorded by the trial court are against the weight of evidence on record and there is considerable delay in lodging of the F.I.R. for which no plausible explanation has been given and that even scribe of the FIR was not produced. Per contra, learned A.G.A. submitted that the accused persons are sons of elder brother of the deceased. P.W.2- Ram Kumari and P.W.3- Parsu Ram are widow and injured son of deceased Ram Ratan Singh respectively. They have given in their statement the manner in which incident was carried out by the accused persons and injuries were caused to Ram Ratan Singh and Parsu Ram by the accused persons. P.W.2-Ram Kumari had reached the spot and was a witness to the assault upon her husband and son. They have given in their statement the manner in which incident was carried out by the accused persons and injuries were caused to Ram Ratan Singh and Parsu Ram by the accused persons. P.W.2-Ram Kumari had reached the spot and was a witness to the assault upon her husband and son. Motive has been given by P.W.3 Parsu Ram saying that the accused while giving blows, said to his father "TUNE HAMARE BHAI BALVIR PAR BHOOTO KI CHOWKI BAITHA DE HAI" that is to say that Ram Ratan who was being assaulted had done an act, by which Balbir, brother of the accused was in the grip of ghost. On the question of semi digested food having been found in the stomach of the deceased, submission of learned A.G.A. is that food taken can remain in semi digested state for 12 to 48 hours where there is serious injury on the head and functions of body controlled by mind/brain stop working in normal condition. In support of this argument, A.G.A. has relied upon Modi's Medical Jurisprudence and Toxicology, Twenty second edition published by Lexis Nexis Butterworths as well as Modi's Textbook of Medical Jurisprudence and Toxicology, Twentieth Edition (revised edition). Having heard learned counsel for the parties and on perusal of the record, it appears that the accused and the deceased belong to the same family and Ram Ratan Singh was done to death due to superstition. As regards delay in lodging of the F.I.R., it has satisfactorily been explained. From the record, it appears that condition of Ram Ratan (deceased) started deteriorating due to grievous injuries received in the incident and therefore he was taken to hospital at Bah, from where he was referred for treatment to the hospital at Agra. He died in the way and was brought back to the village, therefore it cannot be said that undue delay has been caused in lodging of the F.I.R. for his widow as well as son gave priority to save him by trying to provide him with life saving treatment. In so far as non production of the scribe as prosecution witness is concerned, suffice it to say that complainant had got written report by Ram Murari Singh and got it lodged. Investigation had taken place after lodging of the F.I.R., hence non production of the scribe is not fatal to the case. In so far as non production of the scribe as prosecution witness is concerned, suffice it to say that complainant had got written report by Ram Murari Singh and got it lodged. Investigation had taken place after lodging of the F.I.R., hence non production of the scribe is not fatal to the case. Place of the occurrence is established from the statement of P.W. 2 and 3 as well as the site plan prepared by the I.O. of the place of incident and the place where body of Ram Ratan was kept in the house after he died in the mid way while being taken for treatment to Agra. The I.O. had visited the place of incident and therefore to that extent the site plan can be relied upon as to which was the place of incident within his knowledge, from where he had taken blood stained earth and plain earth for chemical examination. P.W. 2 and 3, the deceased as well as the accused were relatives. P.W. 2 and 3 have given evidence against the accused persons about the incident and manner of assault etc. which has been found reliable by the trial court. We may note here that trial court has proceeded with extreme caution in assessing the statement of P.W. 2 and 3. The other persons who had come on the spot, had come at a latter stage i.e. when the accused on seeing them had run away towards Behar. It is settled law that when there is no independent witness of the incident, statements of partisan witnesses are to be scrutinized with care and caution before arriving at a conclusion which the trial court appears to have done. Merely because a relative has given statement in evidence, does not mean that incident did not happen or the witness is deliberately stating a lie. The only ground which requires serious consideration by the court as argued by the learned counsel for appellant that semi digested food was found in the stomach of the deceased, may now be considered. The trial court in this regard as well as with regard to the motive has held thus: " She supported the statement of Paras Ram and stated that on the date of incident Paras Ram Had not gone to school. The trial court in this regard as well as with regard to the motive has held thus: " She supported the statement of Paras Ram and stated that on the date of incident Paras Ram Had not gone to school. At one place in cross examination she stated that she had taken food for her husband at 8 a.m. but in examination-in-chief she stated that she reached at 11 a.m. with food. She is an illiterate lady and therefore, under some misunderstanding she stated that she took food for her husband at 8 a.m. It is also probable that she must have started at 8 a.m. but must have reached at 11 a.m. She was not asked to explain as to where she remained. The above statement does not help the accused. It was not mentioned in the FIR that the injuries were caused with the handle of an axe but this omission is not material. The presence of this witness at the spot was natural. In cross examination she stated that there was litigation between her and the father of the accused; that the case was still pending before D.D.C. This witness could not be disbelieved on the basis of above litigation. This witness stood the test of cross examination successfully. This witness denied the suggestion that she had named the accused due to enmity and instigation of villagers. She could not be disbelieved on the ground that she is wife of deceased. I find this witness natural and believable. Witnesses Ram Murari Singh and Bare Lal have been named as eye witnesses in the F.I.R. Ram Murari Singh and Bare Lal were discharged and therefore they were not examined. There is still evidence against the accused. The learned counsel for the accused further argued that there was no motive for the accused to commit the offence. Smt. Ram Kumar stated that there was litigation over fields between her and the accused. The accused also said to her husband "Tum Ne Is Par Abhiyukt Ke Bhai Balvir Par Jo Beemari Se Theek Nahi Ho Raha Tha) Chauki Rakh Di Hai."( With the help of evil spirits you were causing obstruction in the recovery from illness of Balvir). Thus, the accused were believing that deceased was causing obstruction in the recovery from illness of Balbir. Thus there was sufficient motive for the accused to commit the offence. Thus, the accused were believing that deceased was causing obstruction in the recovery from illness of Balbir. Thus there was sufficient motive for the accused to commit the offence. Sometimes motive is hidden in the heart of the accused. Moreover, when there is direct evidence of murder, motive is immaterial. The above argument does not help the accused. The learned counsel for the accused further argued that according to medical evidence semi digested food was found in the body of Ram Ratan deceased. The food is digested within 6-7 hours. Therefore, the incident could not have taken place at 11 a.m. A large number of injuries including punctured would and lacerated wound causing fracture were caused and due to this there might have been excessive bleeding. On account of excessive bleeding digestive system might not have been normal and therefore semi digested food was found. Moreover, medical evidence has corroborative value. There is direct evidence of eye witnesses and as such the above argument does not held the accused." According to Modi's jurisprudence, rate of emptying of stomach varies in man from 2.5 - 6 hours. A meal containing carbohydrates generally leaves the stomach early and the one containing protein later. The fatty food delays the emptying time while liquids leave the stomach immediately after ingestion. Sometimes, the emptying of the stomach remains in abeyance for a long time in states of profound shock and coma. Undigested food has been seen in the stomach of a person who received severe head injuries, soon after their meal and died within 12 - 24 hours afterwards. In one case, the food consisting chiefly of rice and Dal (Pulse) remained in the stomach for about 40 hours, without undergoing digestion. It must also be remembered that the process of digestion in normal, healthy persons may continue for a long time after death. The presence of tablets or parts of capsules may be significant. Sometimes the power of digestibility may remain in abeyance for a long time in states of profound shock and coma. Food has been seen in the stomach remaining undigested in persons who received severe head injuries soon after their meal and died within twelve to twenty four hours afterwards. In view of the above, we do not find any substance in the argument of learned counsel for the appellant that food is always digested in intestine within 2-4 hours. Food has been seen in the stomach remaining undigested in persons who received severe head injuries soon after their meal and died within twelve to twenty four hours afterwards. In view of the above, we do not find any substance in the argument of learned counsel for the appellant that food is always digested in intestine within 2-4 hours. Modi's medical jurisprudence shows that there are exception to the aforesaid normal rule of limits of digestion of food. In the instant case, since the deceased had received serious injuries on the head which are reflected from the postmortem examination report, it is very much possible that undigested food was found in his stomach. Similar view was taken by Rajasthan High Court in Dhanna and another Vs. State ( AIR 1951 Rajasthan-37, para-9). For all the reasons stated above, we uphold the conviction of the appellants on the basis of record as it stands. In the result, the appeal is accordingly dismissed. Order Date :- 10.12.2014 ——————