JUDGMENT Hon’ble Rakesh Tiwari, J.—Heard Sri Rajiv Kumar Mishra, learned AGA for the appellant-State of U.P., Sri N.K. Mishra, learned counsel appearing for the respondent-accused Sripat and perused the record. 2. This Government appeal has been preferred challenging the validity and correctness of the impugned judgment and order dated 29.3.82 passed by the Additional Sessions Judge, Hamirpur in S.T. No. 280 of 1977 (State v. Sripat and others) whereby the learned trial Judge has acquitted the respondents-accused Sripat, Brij Lal and Gauri of the charge under Section 302/34 IPC. 3. The facts, in brief, as culled out from the record are that first informant Jageshwar son of Saruwa Yadav resident of village Supa P.S. Mahoba District Hamirpur submitted a written report at police station Mahoba on 5.8.77 at about 9.15 a.m., inter alia, that there was some dispute between respondent-accused Brij Lal Yadav and others and the first informant and his brother Babu Lal over some land in the village. There had been a litigation also regarding that land and Babu Lal had once beaten respondent-accused Sripat. Respondent-accused Sripat then lodged an FIR against Babu Lal and his brother who were prosecuted under Section 323 IPC. 4. It was also averred in the FIR that on 4.8.77 the first informant and his brother were coming back from Mahoba after attending the Court in connection with that case under Section 323 IPC. When they were near the village Soopa, Gauri, brother of respondent-accused Brij Lal intercepted them, who was armed with a pistol threatened them but respondent-accused Brij Lal and his brother pleaded before him and were not harmed that day. 5. However, the next day on 5.8.77 at about 6.30 a.m. when the first informant Jageshwar alongwith his brother-in-law Beni was sitting in front of the door of Gauri ‘Badhai’ and his brothers Babu Lal and Ram Charan were standing at the door of their house, respondent-accused Sripat armed with his licensed gun, respondents-accused Brij Lal and Gauri armed with ‘Bhalas’ came there. On exhortation, Brij Lal and respondent-accused Sripat son of Brij Lal Yadav fired a shot at Babu Lal which hit his left side of chest. He ran about 22 steps inside the house, fell down and died there. This incident was seen by the first informant, his brother Ram Charan, their brother-in-law Beni, widow of deceased Babu Lal and Mangi a resident of the village. 6. He ran about 22 steps inside the house, fell down and died there. This incident was seen by the first informant, his brother Ram Charan, their brother-in-law Beni, widow of deceased Babu Lal and Mangi a resident of the village. 6. On the basis of written report the check report was scribed by Head constable, Sri Bahadur Singh. After making entry in the G.D. the FIR of the incident was registered at case crime No. 170/1977 under Section 302 IPC against accused persons Sripat son of Brij Lal Yadav, Brij Lal son of Tatiya Yadav and Gauri son of Tatiya, resident of village Soopa, P.S. Mohoba, District Hamirpur. 7. The investigation of the case was handed over to S.O. Sri S.B. Shukla, who immediately proceeded the place of occurrence. He prepared inquest report of the dead body of deceased Babu Lal (Ex.Ka-6). He also prepared all necessary papers i.e. khaka nash (Ex.Ka-7), challan nash (Ex.Ka-8) and letter to C.M.O. (Ex.Ka-13). The I.O. also recovered an empty cartridge on the road near the place of incident and prepared its recovery memo (Ex.Ka-11). He then collected the blood stained and simple earth from the place of occurrence and also prepared its recovery memo (Ex.Ka-10). The dead body of deceased Babu Lal was then sent in Government Hospital at Mohoba for post-mortem examination through constable Rajendra Singh and Chaukidar Muluwa. 8. Dr. K.N. Mishra (PW-6), who was posted as Medical Officer at Government Hospital, Mahoba conducted the post-mortem examination on the body of deceased Babu Lal on 6.8.77 at 3.00 p.m. On external examination he found the probable age of deceased about 25 years who had met his death about a day prior to the autopsy. His eyes were closed. The deceased was muscularity and stout. Rigor mortis was present. On internal examination it was found that 4 or 5 oz. blood was present on both sides of pleura cavity. Injury in heart was found as described below in the ante-mortem injuries. Undigested food 6 oz. was present in the stomach. 9. The ante-mortem injuries found on the person of deceased Babu Lal were : 1. Gun shot wound of entry 1/4" x 1/4" left infra- clavicular region, no blackening, no charring. The bullet travelled left to backward through the tip of genetical wall and lodged in the back left infrascapular region in 8th inter costal space, 1/2" x1/2". 9. The ante-mortem injuries found on the person of deceased Babu Lal were : 1. Gun shot wound of entry 1/4" x 1/4" left infra- clavicular region, no blackening, no charring. The bullet travelled left to backward through the tip of genetical wall and lodged in the back left infrascapular region in 8th inter costal space, 1/2" x1/2". The bullet was lodged and removed. 2. Gun shot wound of entry right in infraclavicular region 1/4" x1/4" passed backwards, downward and through the middle lobe of lung. The bullet was not recovered. 3. Gun shot wound of entry 1/4" x 1/4" left arm middle third interior side and travelled backward downwards through the lower third of left arm through 1/3" x1/3" through injury No. 1. 4. 1/3" x1/3" wound on tip of heart at its tip of left venticle in the track of injury No. 1. 10. In the opinion of the Doctor the death had occurred as a result of shock and haemorrhage due to injury No. 1. 11. After conclusion of the investigation, the I.O. submitted charge-sheet (Ex.Ka-10) in the Court of Chief Judicial Magistrate, Hamirpur under Section 302 IPC against all the respondents-accused persons. The Chief Judicial Magistrate, Hamipur vide his order dated 24.10.77 committed the case for trial to the Court of Session. Charge under Section 302 IPC was framed against respondent-accused Sripat and charge under Section 302 read with Section 34 IPC. was framed against accused Brij Lal and Gauri. All the respondents-accused persons pleaded not guilty and claimed trial. 12. In order to prove its case, the prosecution examined seven witnesses namely, Bahadur Singh (P.W.1), Jageshwar (P.W.2), Ram Charan (P.W.3), Badrul (P.W.4), Phool Singh (P.W.5), Dr. K.N. Mishra (P.W.6) and Malkhan Singh (P.W.7). 13. The respondents- accused persons in their statements under Section 313 Cr.P.C. denied the charges and stated that they have been falsely implicated in this case due to enmity. They also produced one document (Ex.Kha-1), a certified copy of the judgment in case No. 31 of 1975, Ram Charan v. Brij Lal, under Sections 323 IPC in which accused Brij Lal was acquitted with other co-accused in their defence. 14. They also produced one document (Ex.Kha-1), a certified copy of the judgment in case No. 31 of 1975, Ram Charan v. Brij Lal, under Sections 323 IPC in which accused Brij Lal was acquitted with other co-accused in their defence. 14. The learned trial Court after hearing the parties’ counsel and on appreciation of evidence on record acquitted the respondents-accused persons vide the impugned judgment and order dated 29.3.82 holding that prosecution had not been able to prove its case beyond all reasonable doubts. 15. The present Government appeal has been preferred on the grounds that Babu Lal (deceased) had pressed the gun shot wounds with his hand and ran a few paces causing an internal haemorrhage as no blood had fallen on the ground, therefore, the learned trial Judge erred in disbelieving the prosecution case on the ground that no blood was found at the place of occurrence and the Babu Lal (deceased) could not run at all after receiving the said gun shot injuries which had hit the heart causing damage to its wall. 16. Learned AGA submits that it is evident from the record that the learned trial Judge has erred in holding that the gun shot was fired from a level higher than gun shot injury. According to him, it is common that after entering into the body the shots are sometimes reflected by bones; that Babu Lal (deceased) was going with the animals alongwith Beni and therefore, had taken his meals early in the morning, hence the learned trial Court has committed an error in disbelieving the prosecution story that semi digested food was found in his stomach, hence the death could not have taken place at the time and in the manner suggested by the prosecution. 17. He also submits that Jageshwar (PW-2) and Ram Charan (PW-3) consistently supported the prosecution story and their testimony finds material corroboration from the prompt FIR and the medical evidence, hence the acquittal of all the accused is contrary to the weight of evidence, bad in law resulting in miscarriage of justice is liable to be set aside. 18. The Chief Judicial Magistrate, Mahoba vide his report dated 3.8.2014 has verified that respondent Nos. 18. The Chief Judicial Magistrate, Mahoba vide his report dated 3.8.2014 has verified that respondent Nos. 2 and 3, namely, Brij Lal and Gauri both sons of Tanti Yadav resident of village Soopa, P.S. Charkhari, District Mahoba have died during the pendency of this Government appeal The appeal against them was therefore, abated vide order dated 31.1.2014. 19. Sri N.K. Mishra, learned counsel appearing for the respondent No. 1-accused Sripat has supported the impugned judgment of the learned trial Court and submits that the prosecution has failed to explain the inconsistencies between the evidence of eye-witnesses and the medical evidence; that according to the statement of Dr. K.N. Mishra (PW-6), the heart of the deceased was damaged and a man cannot move after damage is caused to the heart which immediately stop functioning after the damage caused to it; that it is not possible for the deceased to have allegedly run a few paces after receiving the said gun shot injury. 20. He also submits that according to the eye-witness, the respondent-accused Sripat had fired from a passage whereas according to the medical opinion, the angle of fire shot ought to have been from a place higher in level than the entry wound as the track of the wound was backwards and downwards; that according to the statement of Ram Tirath (PW-3) the deceased had already gone to attend call of nature and after coming back from easing himself he had also washed his hands and mouth but according to the report of Dr. K.N. Mishra (PW-6) some undigested food was found in the stomach of the deceased which would go to show that the deceased had taken food about two or three hours before the incident which would not be possible as it would show that Babu Lal (since deceased) had taken his meal at about 4.00 a.m. and that none of the witness explained how undigested food was found in the stomach. According to the medical opinion, the deceased must have died after two or three hours of taking his food; that he might have taken food at about 9.00 p.m. and must have died at about 12 in the night; that the doctor admitted the possibility of murder at about 11 p.m. or 12 in the night of 4/5.8.77. 21. He next submits that there is another inconsistency in the statement of eye-witnesses. 21. He next submits that there is another inconsistency in the statement of eye-witnesses. According to them, only a single shot was fired by Sripat accused whereas according to the medical report and opinion of Dr. K.N. Mishra (PW-6) two shots should have been fired causing gun shot injuries to the deceased. According to him, the prosecution could not explain this inconsistency in the medical evidence and the direct evidence and the prosecution witnesses could concoct the facts of the case but they cannot change material facts detected in the post-mortem examination which is more reliable than ocular evidence, which cannot be only source of glimpses of images of actual happenings hence the learned trial Court has committed no illegality or infirmity in passing the impugned judgment of acquittal. 22. After hearing learned counsel for the parties and on perusal of the record we find that the learned trial Court by the impugned judgment and order dated 29.3.82 has acquitted respondents-accused Sripat, Brij Lal and Gauri of the offence punishable under Section 302 IPC by giving them benefit of doubt. We have carefully perused the findings of acquittal recorded by the learned trial Court and its reasoning and have tallied the records with the findings recorded by the learned trial Court. 23. From the record it appears that the lower tip of wall of heart of the deceased was damaged. According to the doctor, a man cannot move after such a damage caused to the heart as in the instant case, where the deceased allegedly ran about 20 paces after receiving gun shot injury. However, it is only an opinion and there are instances where a man moves to a distance even after receiving bullet injury in the heart. It may be mentioned here that lower tip wall of the heart was damaged by the bullet which razed it. Accused Sripat is said to have fired from a place which is a passage whereas according to the statement of the doctor, the shot was fired from a higher level as the track of the wound was backward and downwards. According to the statement of Ram Tirath (PW-3) the deceased had already gone to attend nature’s call and he had also washed his hands and mouth after coming back from easing himself but according to the statement of Dr. According to the statement of Ram Tirath (PW-3) the deceased had already gone to attend nature’s call and he had also washed his hands and mouth after coming back from easing himself but according to the statement of Dr. K.N. Mishra (PW-6) some undigested food was found in the stomach of the deceased which establishes that the deceased had taken food about two or three hours before, hence it was not possible for him to have taken food at about 4.00 a.m. if medical evidence is to be believed. However, as none of the witness could explain how undigested food was found in the stomach, hence the medical evidence in this regard remains unrebutted. Since according to the medical opinion, the deceased must have died after two or three hours of taking his food, hence it is possible that he might have taken food at about 9.00 p.m. and must have died at about 12 in the previous night as the doctor admitted the possibility of murder at about 11 p.m. or 12 in the night of 4/5.8.77. Moreover, the eye-witnesses alleged that only single shot was fired by Sripat accused whereas according to the medical opinion of Dr. K.N. Mishra (PW-6) two shots had been fired causing the gun shot injuries to the deceased both of which were backwards and at a downward angle. The prosecution could not explain the above inconsistencies in the medical evidence and the direct or ocular evidence of witnesses. 24. From the record it also appears that according to the statement of Ram Charan (PW-3) Babu Lal (deceased) was standing towards south from him at a distance of 2 or 3 paces and accused Sripat was towards north from both of them. If he had fired from that direction, some injury could have been caused to the witness Ram Charan also but strangely enough no such injury was caused to him. No blood could have been found by the I.O. at the place where the deceased is said to have received fire-arm injuries or even in the way from that place to the place where the dead body was found as from the post-mortem report of Babu Lal (deceased) it appears that blood was found on both sides of pleura cavity. No blood could have been found by the I.O. at the place where the deceased is said to have received fire-arm injuries or even in the way from that place to the place where the dead body was found as from the post-mortem report of Babu Lal (deceased) it appears that blood was found on both sides of pleura cavity. Hence, the blood may not have spilled out of the injury but collected on both sides of pleura cavity as stated above in ante-mortem examination report. 25. For the reasons stated above, we find that the view taken by the learned trial Court is possible, hence we uphold the impugned judgment of acquittal dated 29.3.82 of the learned trial Court. The Government appeal is accordingly dismissed. —————