JUDGMENT : (Per-Hon'ble Ravindra Nath Kakkar, J.) 1. We have heard Shri Rajesh Gupta, learned counsel for the appellants and Smt. Usha Kiran, learned A.G.A. for the State. 2. Criminal Appeal No. 372 of 1983 has been preferred by the appellants Satti s/o Babu Lal, Suresh s/o Ganga Din and Dadhibal s/o Ram Bhajan against the judgment of conviction and order of sentence passed by District and Sessions Judge, Kanpur dated 03.02.1983 in S.T. No. 132/M of 1982 "State Vs. Nanhoo and others" convicting accused Nanhoo under Section 324 IPC and sentencing him to two years rigorous imprisonment. Further, Satti Prasad, Suresh and Dadhibal are convicted under Section 365 IPC and sentenced to six years rigorous imprisonment each. 3. Connected Criminal Appeal No. 378 of 1983 has been preferred by the appellant Nanhoo against the judgment of conviction and order of sentence passed by the District and Sessions Judge, Kanpur dated 03.02.1983 in S.T. No. 132/M of 1983, "State Vs. Nanhoo" convicting accused Nanhoo under Section 302 IPC and sentencing him to imprisonment for life. He is further convicted under Section 365 IPC and sentenced to six years rigorous imprisonment. 4. Since both the criminal appeals arise out of same incident and directed against the same order, they were connected together. However, Criminal Appeal No. 378 of 1983 preferred by the accused-appellant Nanhoo on his death stands abated vide order dated 09.10.2015. 5. The prosecution version as emanates from the First Information Report is as follows :- Badlu (Complainant), his brother Panthu, his nephew Hira Lal and his parents were residing in Village Rehnas for a long time with his widowed sister Kalawati who was aged about 50 years. She was issue-less. At the time of incident, complainant Badlu, his brother Panthu and his father were sleeping in chaupal where there was a lighted lantern. Kalawati widowed sister of Panthu and Sukharana their mother were sleeping in the room where there was a lighted chimny. Hira Lal (nephew) was sleeping in his own room. At about 11:00 p.m in night, his mother and sister cried. On their noise, complainant and his brother awoke and his nephew Hira Lal also came outside the room. Kalawati widowed sister of Panthu and Sukharana their mother were sleeping in the room where there was a lighted chimny. Hira Lal (nephew) was sleeping in his own room. At about 11:00 p.m in night, his mother and sister cried. On their noise, complainant and his brother awoke and his nephew Hira Lal also came outside the room. They saw Nanhoo and Suresh armed with country made pistol, Sati Prasad armed with spear and Dudhiwal armed with lathi, who belonged to village Rehnas, caught hold of his widowed sister Kalawati and dragged her from the room and Nanhoo was saying that how she made a will deed. Panthu, brother of complainant tried to free her sister from the clutches of the accused Nanhoo but accused Nanhoo opened fire shots towards him which hit him and he fell down. Sati Prasad assaulted his mother with spear. Further allegation is that they all tried to save his widowed sister and made alarm but accused persons abducted his widowed sister under threat of country made pistol, spear and lathi. Further on alarm being raised, some of the villagers reached on the spot. The reason behind killing his brother was that about a year back widowed sister Kalawati had executed a sale deed of 9 bighas of agricultural land in favour of complainant and his brother and thereafter, she had executed a will deed in their favour for the rest of the land. It is also mentioned in the FIR that accused Nanhoo is real nephew of his brother-in-law, who was murdered long before this incident in which Gangadin, brother of accused Nanhoo was charged and faced the trial and there was enmity between him and the accused persons and that was the reason of the murder of his brother and abduction of his widowed sister. 6. It transpires from the record that date of incident is alleged to be 30.01.1982 at 11:00 p.m in night. Report was lodged in police station on 31.01.1982 at 9:30 a.m. Distance from place of occurrence to police station is 5 k.m. and its report was sent to higher authority on 01.02.1982. 7. The prosecution story which transpires from material available on record reveals that Kalawati was married to one Badlu, who was murdered about two decades earlier. Badlu had agricultural land in his name. 7. The prosecution story which transpires from material available on record reveals that Kalawati was married to one Badlu, who was murdered about two decades earlier. Badlu had agricultural land in his name. Gangadin, his own nephew and the real brother of accused Nanhoo was put to trial for his murder which however resulted into acquittal. After murder of Badlu, his entire estate devolved upon his widow Kalawati and due to the strained relations, Kalawati called her brother Panthu for help, security and her protection. Thereafter with the passage of time, Kalawati executed a sale deed of 9 bighas of agricultural land in favour of her brothers and for the remaining land executed a registered will in their favour. That resulted in growing antipathy and was alleged to be the motive behind this incident. Pertinent to mention that accused Nanhoo was real nephew of the Nanhoo. Gangadin, accused of the murder of the husband of Kalawati, was real brother of the late husband of Kalawati. The other co-accused Sati Prasad is related to the accused Nanhoo and Suresh and other co-accused Dudhiwal is alleged to be the friend of the co-accused Nanhoo. 8. The site plan Ex. Ka-23 reflects that the house of Kalawati, in which her brother and parents were residing, was west facing. On the main road, there is a chaupal and adjacent to the east, there was another room with connecting door and further towards east there is a room which opens into the courtyard. On the other side of the courtyard, there was another room opening into the courtyard. 9. On the date of incident around 11 p.m at night, the two brothers Badlu (informant) and Panthu (deceased) and their parents were sleeping in chaupal. The two brothers were sharing the same cot. In the adjacent room, Kalawati and her mother Smt. Sukhrana were sleeping. The door in between was not closed from inside. Hira Lal, son of deceased Panthu was sleeping in the third room which is next to the east of the courtyard. Source of light in chaupal was a lighted lantern and a kerosene chimni (oil lamp) was lightening in the adjoining room where the two ladies were said to be sleeping. The door in between was not closed from inside. Hira Lal, son of deceased Panthu was sleeping in the third room which is next to the east of the courtyard. Source of light in chaupal was a lighted lantern and a kerosene chimni (oil lamp) was lightening in the adjoining room where the two ladies were said to be sleeping. At the time of incident when Kalawati was being abducted, on her alarm, her brother, parents and Hira Lal awoke and saw that among the four accused persons Nanhoo and Suresh were armed with country made pistol, Sati Prasad with spear and Dudhiwal with lathi. Deceased Panthu came forward and tried to intervene as accused Nanhoo was carrying Kalawati on his shoulder. At that point of time, Nanhoo opened fire at Panthu from close range which hit on his skull. Smt. Sukhrana, mother of Kalawati also tried to intervene on which accused Sati Prasad assaulted her with spear which hit her on the forehead. Thereafter, Kalawati was abducted and was not to be heard and seen. 10. It also transpires from the record that accused Nanhoo surrendered on 05.02.1982 and on his interrogation, recovery of the saree and blouse of Kalawati was made which were kept lying buried under the sand. Ghasita PW-8 had witnessed its discovery and it is also the prosecution case that Kalawati had been done to death by the accused persons. 11. After completion of the investigation, chargesheet was submitted against all the four accused persons. 12. Learned trial Court charged all the four accused persons under Section 302 read with Section 34 of the Indian Penal Code for the murder of the deceased Panthu and with abduction and murder of Kalawati. All the accused persons were charged with the offence punishable under Section 364 IPC and Section 201 read with Section 34 of the IPC for causing the disappearance of the body of Kalawati. It also reveals from the lower court record that accused Nanhoo had been further charged with the offence of murder punishable under Section 302 IPC (simplicitor) for the murder of Panthu and Kalawati. 13. It also reveals from the lower court record that accused Nanhoo had been further charged with the offence of murder punishable under Section 302 IPC (simplicitor) for the murder of Panthu and Kalawati. 13. It also transpires from the material available on the record that the First Information Report was written by Hira Lal which was lodged by the informant Badlu at the police station by 9 a.m. The investigation was conducted by S.I. Ram Awtar Sharma, who was present at the police station when the FIR was lodged. He reached the place of occurrence at 11:00 a.m., conducted the inquest of the dead body which was thereafter sent for the post mortem. Blood stain material was also recovered from the spot. The injured victim Smt. Sukhrana was sent for her medical examination. Site plan of the place of occurrence and also the site plan of the place of recovery of the clothes of Kalawati had been prepared by the Investigating Officer. Details of the Prosecution Evidence :- (1) Medical Evidence Dr. K.C. Srivastava (PW-1), who conducted the post-mortem of the dead body, was examined who stated that he conducted the post-mortem examination of the deceased on 01.02.1982 at 2:00 p.m. The deceased was aged about 50 years. The ante mortem injuries as stated are as follows :- (i) Gun shot wound of entry 6 c.m. x 6 c.m. x brain cavity deep behind left ear. All the underlying bones fractured in pieces & margins inverted with blackening charring present. (ii) Gun shot wound of exit 27 c.m. x 11 c.m. x brain cavity deep on left side of scalp. Brain matter absent & cerebral membrance lacerated & under lying bones of skull fractured in pieces & margins everted. Dr. G.K. Mishra (PW-2), who conducted the medical examination of Smt. Sukhrana, was examined. He stated that he conducted the medical examination of Smt. Sukhrana on 31.01.1982 around 5:30 p.m. and following injuries were found on her body :- (i) Punctured wound ¾ c.m. x ¾ c.m. x bone deep left side forehead 2 c.m. above from middle of left eye brow. (2) Eye Version Account:- The eye version account was tendered by the prosecution witness, Badlu (PW-3), Hira Lal (PW-4) and Smt. Sukhrana, the injured victim(PW-5). (2) Eye Version Account:- The eye version account was tendered by the prosecution witness, Badlu (PW-3), Hira Lal (PW-4) and Smt. Sukhrana, the injured victim(PW-5). (3) Formal Witnesses H.C. Devi Charan, PW-6 was examined who on the basis of the written report prepared the chik report and registered the case in the G.D. which is Ex. Ka-3 and Ex. Ka-4 respectively. Further this witness has proved copy of the G.D. Ex. Ka-5, Ka-6 and Ka-7. S.I. Ram Awtar Sharma (PW-7) was the Investigating Officer, who conducted the investigation and proved the inquest report Ex. Ka-9, Photo Naash Ex. Ka-10, Challan Naash Ex. Ka-11, letter to C.M.O. and R.I. Ex. Ka-12, Ka-13, Furd recovery Ex. Ka-14, Furd Plain earth Ex. Ka-15, Furd Lantern and chimni Ex. Ka-16, Saree and blouse Ex. 1, Ex. 2, Ex. Ka-18 and recovery Spot Memo Ex. Ka-19. PW-8 Ghasita was examined to prove the Furd of the recovered saree and blouse of the abducted victim Kalawati. (4) Defence Witnesses To support the defence version, two witnesses were examined. DW-1, Kuka who stated that he reached spot immediately after the incident and found that Kalawati was not there. Body of the deceased Panthu was lying dead in the chaupal and Smt. Sukharana was found to be injured and the injury sustained by her was in the region of her forehead. It was further stated that it was complete dark inside the house and Smt. Sukhrana narrated the whole incident to be made by the gangsters without naming any of the accused. Sri. S.Q. Ahmad DW-2, Pharmacist, District Jail, Kanpur is the other defence witness before whom medical examination of the injury on the body of the accused Nanhoo was carried out in District Jail by the doctor. DW-1, Kuka stated that on the relevant date of incident at about 11 to 12 in the night on hearing the noise of fire weapon, he immediately reached the spot and found dead body of the panthu lying on the cot. Smt. Sukhrana told that she could not see the assailants in darkness and thus, did not disclose the name of any accused Next morning at about 5:00 a.m., father of the deceased Panthu came to him and asked him to call Hira Lal from his in-laws place. He went to village Khadra and came with Hira Lal at about 11:00-11:30 a.m. in the next afternoon. He went to village Khadra and came with Hira Lal at about 11:00-11:30 a.m. in the next afternoon. DW-2, S.Q. Ahmad, before whom the medical examination of the accused Nanhoo was conducted in jail hospital, stated that four injuries were there on the left side of the body on thigh, knees and shoulder. The statement was based on the medico legal register of jail. 14. After hearing, the learned trial judge convicted the accused Nanhoo under Section 302 IPC and sentenced him to imprisonment for life. Accused Sati Prasad was convicted under Section 324 IPC and sentenced to a term of two years rigorous imprisonment and further accused Nanhoo, Sati Prasad, Suresh and Dadhibal were convicted under Section 365 IPC and were sentenced to rigorous imprisonment for a term of six years each. 15. Aggrieved against the said judgment, this appeal has been preferred. Relevant to mention that two separate appeals have been filed against the impugned judgment. One is Criminal Appeal No. 372 of 1983 which is by the accused-appellant Sati Prasad, Suresh and Dadhibal. The second Criminal Appeal No. 378 of 1983 preferred by the accused Nanhoo had already been abated on account of his death vide order dated 09.10.2015. The appeal preferred by accused-appellants Sati Prasad, Suresh and Dadhibal is under consideration. 16. Among the above said surviving appellants, accused Sati Prasad was convicted under Section 324 IPC and sentenced to a term of two years rigorous imprisonment. Further all the three accused-appellants namely Sati Prasad, Suresh and Dadhibal are convicted under Section 365 IPC and sentenced to six years rigorous imprisonment each. 17. The learned counsel for the appellant challenged the impugned judgment of conviction on following grounds :- (i) There is a delay in lodging the FIR. No plausible explanation has been given by the prosecution. (ii) Presence of the scriber Hira Lal, who is alleged to have written the report, is highly doubtful and this fact has been substantiated by the defence by tendering the evidence of DW-1, Kuka. (iii) The testimony of the eye version account witnesses are highly interested and partisaned. (iv) The injury report of the victim Smt. Sukhrana is not in consonance with the ocular testimony. (v) Immediate motive has not been proved in this case. The alleged motive is neither probable nor acceptable. (iii) The testimony of the eye version account witnesses are highly interested and partisaned. (iv) The injury report of the victim Smt. Sukhrana is not in consonance with the ocular testimony. (v) Immediate motive has not been proved in this case. The alleged motive is neither probable nor acceptable. (vi) The theory of abduction of Kalawati and thereafter her murder by accused Nanhoo and recovery of the clothes of the abducted victim Kalawati is doubtful. (vii) Further there is a material contradiction between the inter-se ocular testimony of the prosecution witnesses. (viii) The impugned judgment is perverse in recording the conviction of the surviving accused-appellant. The case of the prosecution against the surviving appellant is not proved beyond reasonable doubt. Therefore, appeal deserves to be allowed. 18. Per contra, learned A.G.A. supported the impugned judgment of conviction and order of sentence stating that the presence, involvement and complicity in commission of the crime by the surviving accused-appellants are established by tendering cogent and credible evidence by the prosecution. All the points which have been raised in this appeal are very well discussed in the impugned judgment. So the judgment cannot be said to be perverse. Rather neither there is any infirmity nor perversity in the impugned judgment. The prosecution has established the guilt against the surviving accused-appellant without shadow of any reasonable doubt. Therefore, appeal deserves to be dismissed and the impugned judgment is to be confirmed. 19. During arguments, it has come from both the sides that main accused was Nanhoo who has been charged for the murder of the deceased Panthu and abduction and murder of Kalawati. 20. After going through the contention as raised by both the parties. We have perused the evidence and material available on the record. We find that the incident is alleged to be of 30.01.1982 at 11:00 p.m and its report has been lodged in the police station on 31.01.1982 at 9:30 a.m. Hira Lal s/o Panthu resident of village Rehnas is mentioned as scriber of the written report and the informant of the written report to police station is Badlu, who is real brother of the deceased Panthu and uncle of the scriber Hira Lal. Badlu was examined as PW-3 and Hira Lal was examined as PW-4. Badlu was examined as PW-3 and Hira Lal was examined as PW-4. PW-3, informant Badlu has stated in his examination-in-chief that since it was raining, all the family members were under a mental agony, so the report could not have been lodged in the night of the incident. On the next early morning at about 7:00 a.m, Hira Lal wrote the report and thereafter he put his thumb impression on the report and went to the police station Maharajpur to lodge the FIR. 21. In cross-examination, he has admitted that wife of Hira Lal was in maika at the relevant date and time and she was brought from her maika at about 10:00 a.m. He further admitted that Hira Lal went to call her. There is a contradiction on the point that whether Hira Lal went to his in-laws house to call her wife at early morning at 5:00 a.m. or at 7:00 a.m. The admission of this witness that Hira Lal went to his in-laws house to bring back his wife early at 5:00 a.m and made the written report which is stated by this witness to be written at 7:00 a.m bring the testimony under cloud of suspicion. Further this witness has gone to the extent of stating that Hira Lal did not go to in-laws house but the information has been sent through some messenger. Another point which is relevant to mention that if Hira Lal had a cycle and he did not go to his in-laws, why Hira Lal, who is scriber and the real nephew of the informant, did not accompany to the police station with the informant. There is a definite suggestion to this witness by the defence that Hira Lal was not present in the village on the date of incident as he went to his in-laws house to bring back his wife. This fact is supported by the defence witness DW-1, Kuka who stated that on the next morning of the incident, father of the deceased Panthu came to his house at early morning at 5:00 a.m and said "you go and call him". He further stated that he went to the village Khadra and brought Hira Lal back to the village at about 11:00-11:30. He further stated that he went to the village Khadra and brought Hira Lal back to the village at about 11:00-11:30. So, we find there is a substance in the contention No. (i) and (ii) as raised by the learned counsel with regard to the lodging of FIR and the presence of Hira Lal at the relevant time. 22. So far as the third contention with regard to the testimony of the eye version account is concerned, it is an admitted fact that PW-3 Badlu is the real brother of the deceased Panthu. PW-4, Hira Lal is son of the deceased Panthu. PW-5, Smt. Sukhrana is the mother of the deceased Panthu. In this regard, we would like to refer that it is an established legal proposition that on the sole basis that witnesses are being interested, related or partisaned witnesses, the evidence of such witnesses cannot be out rightly discarded but their testimonies are to be carefully and cautiously scrutinized and certain amount of corroboration is required from the physical factors. 23. On the touch stone of the above said legal proposition, we have scrutinized their testimony with care and caution. PW-3, Badlu (informant) stated that at the time of incident he was sleeping in chaupal along with the deceased and his father and Kalawati and Smt. Sukhrana (mother) were sleeping in a room adjacent to chaupal. In both the places, there were source of light from lantern and chimni respectively. Further inside the room his nephew Hira Lal was sleeping. On the noise of Smt. Sukhrana, they all awoke and saw that all the four accused persons were carrying Kalawati. They also saw that the accused Nanhoo and Suresh were armed with country made pistol, Dadhibal with lathi and Sati Prasad with spear. Nanhoo fired gun shot which hit in the back side of the deceased Panthu and accused Nanhoo was saying, " how the will deed has been executed". Sati Prasad assaulted Smt. Sukhrana with spear which hit on her forehead and accused escaped from the spot carrying Smt Kalawati. In the cross-examination, witness has stated that there is a police chauki and hospital in Sarsaul which is near to the place of occurrence in comparison to the police station Mahrajpur. Sati Prasad assaulted Smt. Sukhrana with spear which hit on her forehead and accused escaped from the spot carrying Smt Kalawati. In the cross-examination, witness has stated that there is a police chauki and hospital in Sarsaul which is near to the place of occurrence in comparison to the police station Mahrajpur. Further in cross-examination, this witness has stated that when Kalawati was being carried by the accused persons, deceased Panthu caught hold of Kalawati in order to release her from the clutches of the accused persons. At that moment, he suffered a gun shot injury and he was standing behind the deceased Panthu at that point of time. He could not hold Kalawati at that time. 24. In support of the prosecution case, PW-4 another witness Hira lal, who is son of the deceased Panthu stated that at that time he was sleeping in his room and Kalawati were sleeping adjacent to the chaupal and the deceased Panthu and his brother Badlu were sleeping on the same cot in chaupal. On hearing the noise of Smt. Sukhrana, he came out of his room and saw that the accused persons were dragging Smt Kalawati. Panthu intervened and tried to save Kalawati. On this he was fired by Nanhoo and Sati Prasad assaulted Smt. Sukhrana with spear and the accused fled away from the spot carrying Kalawati. 25. In cross-examination, he has stated that his wife at the relevant date had gone to her parental house and she was brought back at about 11:00 a.m next morning by his father-in-law on the message being sent through a person named Kuka. Important to mention that Kuka has been produced by the defence as DW-1 who has stated that he went to the village Khadra and brought wife of Hira La back to the village. PW-4, Hira Lal further stated that the victim Kalawati was being carried on the shoulder of the accused Nanhoo and the victim was raising alarm. But none had chased the accused persons. In his cross-examination he further stated that neither Panthu nor Badlu caught hold of the abducted victim Kalawati to save her from the clutches of the accused. PW-5, Smt. Sukhrana is alleged to be the injured victim of the incident. But none had chased the accused persons. In his cross-examination he further stated that neither Panthu nor Badlu caught hold of the abducted victim Kalawati to save her from the clutches of the accused. PW-5, Smt. Sukhrana is alleged to be the injured victim of the incident. She stated that at the time of incident when the accused persons were carrying Kalawati and on alarm being raised by her, Badlu and Panthu tried to release Kalawati from the clutches of the accused, on which Nanhoo fired which hit Panthu and he fell down on the cot and Sati Prasad assaulted her with spear and the accused persons fled away taking Kalawati and Panthu died instantaneously on the spot. In her cross-examination, she stated that on alarm being raised, none of the villagers came on the spot. She further stated that Panthu and Badlu still remained in chaupal and never went to the room of Kalawati and none of her son had ever caught hold of the abducted victim Kalawati. A contradictory statement has come out during her cross-examination as she stated that she went to the police station early in the next morning and she was brought to hospital for medical examination in afternoon but her medical was conducted at 5:30 p.m in the evening. She further stated that she had been assaulted in chaupal not in the room where she along with Kalawati were sleeping. She also stated that Nanhoo was carrying Kalawati on his shoulder and while keeping Kalawati on his shoulder, fired towards Panthu. At the end of the cross-examination, she stated that when Kalawati was abducted by the accused persons, saree and blouse of the abducted victim were released in the scuffle and she became naked at that time and the clothes were handed over to the police. So the prosecution version that the clothes of the abducted victim were recovered on the pointing of the accused Nanhoo comes under serious doubt. 26. It is also relevant to mention that the accused-appellant Sati Prasad, Suresh and Dadhibal have preferred a separate appeal against the judgment of conviction and order of sentence, wherein Sati Prasad was convicted under Section 324 IPC and sentenced to two years rigorous imprisonment and further Sati Prasad, Suresh and Dadhibal convicted under Section 365 IPC and sentenced to six years rigorous imprisonment. Accused-appellant Sati Prasad, who was convicted under Section 324 IPC was said to have inflicted injury to Smt. Sukhrana by spear and all the accused persons abducted Kalawati who was found to be missing from the house. So the main purpose of all the accused persons was to abduct Kalawati. As we have already observed in the judgment that the main reason of the abduction is transfer of agricultural property in favour of her brothers and execution of will deed. Under these facts and circumstances, it can very well be observed that as a matter of necessity to have Kalawati in their custody and that could be the way to neutralize and make ineffective the earlier executed will in favour of her brothers. From this it can be inferred that Kalawati was required to be alive rather her death. 27. So far as the conviction under Section 324 of IPC against the accused Sati Prasad is concerned, we find from the record that Smt. Sukhrana, the injured victim was medically examined on the next day of incident at about 5:30 p.m. This fact is not disputed that injured victim Smt. Sukhrana accompanied with the complainant to the police station and the FIR of the incident was lodged at 9:30 a.m. Under these fact situation the serious question arises that victim Sukhrana, who was said to be injured by sharp edged weapon on her forehead at the time of the commission of the crime, was medically examined after a long gap of 18 to 19 hours. Further medical evidence belies the eye version account as injured victim Smt. Sukhrana had punctured wound with clear cut margin and duration of the injury is found to be fresh having superficial dimension. This is not in consonance with the eye version account which makes the prosecution story doubtful. On this point, it is pertinent to mention that hospital at Sarsaul is near the place of occurrence in comparison to the distance of police station. Under what circumstances, she first travelled to the police station instead of being provided with medical aid which was available near the place of occurrence. Such type of delay in medico legal examination creates further doubt over the injuries sustained on the body of Smt. Sukhrana said to be caused by the accused Sati Prasad. Under what circumstances, she first travelled to the police station instead of being provided with medical aid which was available near the place of occurrence. Such type of delay in medico legal examination creates further doubt over the injuries sustained on the body of Smt. Sukhrana said to be caused by the accused Sati Prasad. Further when Smt. Sukhrana was present at the time of lodging the FIR at police station, then why her statement under Section 161 Cr.P.C. has not been recorded by the Investigating Officer before sending her for medical examination at hospital. Why the statement under Section 161 Cr.P.C. of the injured victim Smt. Sukhrana was taken after three days of the incident. Sri. G.K. Mishra who conducted the medico legal stated that injuries found on the body of the injured was simple and the duration of the injury was fresh. Relevant to mention that it is medically established fact that duration of the fresh injury signifies that the injury is in between 6 to 8 hours and this has been admitted by PW-2 Sri. G.K. Mishra in his cross-examination. The above facts and circumstances shatters the root of the prosecution version about the injuries being inflicted by a sharp weapon like spear by the accused person Sati Prasad. So it can be safely concluded that medical evidence totally belies the eye version account. 28. On this point, Hon'ble the Apex Court in Abdul Sayeed Vs. State of M.P. (2010) 10 SCC held that "though the ocular testimony of a witness has greater evidentiary value vis-a-vis medical evidence, when medical evidence makes the ocular testimony improbable, that becomes a relevant factor in the process of evaluation of the evidence. However, where the medical evidence goes so far that it completely rules out all the possibility of the ocular evidence being true, the ocular evidence may be disbelieved". In the case of Kapil Deo Mandal and others Vs. State of Bihar 2008 (1) (Supreme Court) ,the Hon'ble Apex Court held that in case of inconsistency in evidence of witnesses and the trustworthy medical evidence, accused would be entitled to benefit of doubt. 29. In the case of Kapil Deo Mandal and others Vs. State of Bihar 2008 (1) (Supreme Court) ,the Hon'ble Apex Court held that in case of inconsistency in evidence of witnesses and the trustworthy medical evidence, accused would be entitled to benefit of doubt. 29. With regard to the conviction of the surviving accused appellants under Section 365 of the IPC, we have already noticed that on the point of discovery and consequential recovery of the clothes according to the prosecution, the abducted victim Kalawati was wearing saree and blouse at the time of the incident and these clothes were subsequently recovered at the instance of the accused Nanhoo after being dug out under the river bank and material Ex. 1 and 2 were produced before the trial Court. But this does not find support from the evidence of PW-5 Smt. Sukhrana who stated before the Court that these clothes were taken off at the place of occurrence and Kalawati was naked when she was abducted by the accused persons. She further stated that it was the accused Nanhoo who carried Kalawati on his shoulders. This fact stands contradicted as the injured victim Smt. Sukhrana, mother of the abducted victim Kalawati stated that it was she who had handed over these clothes to the Investigating Officer when she returned back after being medically examined on the next day of the incident. So we find that the prosecution version as to the recovery of the saree and blouse alleged to be recovered at the instance of the accused Nanhoo after six days of the incident comes under the heavy cloud of suspicion. Further on this point, we would like to mention that if the prosecution version is taken to be true on its face value, it makes highly improbable that why the dead body of the abducted victim Kalawati be thrown in river taking off her clothes and her saree and blouse be kept hidden next to the bank of river. Thus, the statement PW-6 to the effect of recovery at the instance of the accused Nanhoo is found to be highly improbable and in contradiction to the statement of PW-5 Smt. Sukhrana, mother of the abducted victim. Thus, the statement PW-6 to the effect of recovery at the instance of the accused Nanhoo is found to be highly improbable and in contradiction to the statement of PW-5 Smt. Sukhrana, mother of the abducted victim. Further on this point, we would like to refer the impugned judgment wherein the learned trial Court after making charge under Section 364 of the IPC had convicted the accused persons under Section 365 of the IPC concluding that Kalawati was abducted for keeping her secretly and wrongfully confined, so that she may be subjected to influences, intimidations or both. We do not agree with this finding as the prosecution story from its very beginning states that Kalawati was abducted and had been done to death and the recovery of the clothes supports the prosecution story. The theory of keeping her alive and confine her secretly or wrongfully does not support the prosecution story. As we have already observed that the recovery of the clothes of the abducted victim is found to be highly improbable, doubtful as there are contradictions in the statements of the PW-5, and PW-6, Investigating Officer on this point. Conclusion 30. On the basis of the aforesaid reasons and discussions, we conclude that lodging of the FIR alleged to be written by Hira Lal is found to be doubtful. Further medical evidence belies the eye version account. Recovery of the clothes i.e. saree and blouse on the body of the abducted victim Kalawati at the instance of the accused Nanhoo is found to be in a serious doubt. The prosecution story shows that the deceased Kalawati after being murdered by throttling was thrown in river Ganga after removing her clothes which are alleged to be hidden near the river bank, is a big question mark on the prosecution story. Another question mark on the prosecution story is that why injured Smt. Sukhrana went to the police station along with the complainant before being medically examined and further delay in conducting her medico legal examination especially when it is clear from the evidence that hospital in Sarsaul is near the place of occurrence. We also find that investigation of the case has been conducted in a very casual manner. The source of the light i.e. lantern and chimni, at the time of incident has not been verified whether it was in a working condition or not. We also find that investigation of the case has been conducted in a very casual manner. The source of the light i.e. lantern and chimni, at the time of incident has not been verified whether it was in a working condition or not. Its fard had not been prepared by the Investigating Officer. 31. There are serious contradiction in lodging of the FIR at police station and the arrival of the Investigating Officer on the spot. No plausible explanation has been accorded by the prosecution why the statement of injured victim had not been recorded immediately after lodging of the FIR and why she has not been sent to the hospital for her medical examination. Cumulative effect of all the above stated facts and circumstances of the case safely lead to conclusion that the impugned judgment of conviction and order of sentence is against the weight of the evidence available on record and thus, is not sustainable in the eye of law. Therefore, we conclude that the prosecution has utterly failed to establish the guilt against the surviving appellants without reasonable doubts. Therefore, impugned judgment of the trial Court is liable to be set aside and appeal deserves to be allowed. 32. Accordingly, the appeal is allowed. The appellants are on bail. They are not required to surrender. Their bail bonds and sureties bonds are hereby discharged. 33. Let a certified copy of the judgment and order along with lower court record be sent to the concerned Chief Judicial Magistrate/trial Court for compliance.