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2023 DIGILAW 2218 (ALL)

State of U. P. v. Rai Singh

2023-09-26

NAND PRABHA SHUKLA, SURYA PRAKASH KESARWANI

body2023
JUDGMENT Heard Smt. Manju Thakur, learned A.G.A. for the appellant and Sri S.K. Yadav, learned counsel for the surviving accused-opposite party nos. 2 and 3. 2. This appeal has been filed by the State against acquittal of six accused persons, namely, Rai Singh, Ram Veer, Shripal, Prakash, Sone Lal and Maikoo under Sections 302/34 read with Section 120B IPC; by the impugned judgment and order dated 10.10.1985 in Sessions Trial No. 742 of 1983 (State v. Rai Singh and others) relating to Case Crime No. 62 of 1983, P.S.-Patiyali, District-Etah passed by the Second Additional District and Sessions Judge, Etah. 3. By order of this Court dated 21.04.1988, application for leave to appeal against the accused opposite party No. 4 Prakash, accused opposite party No. 5 Sone Lal and accused opposite party No. 6 Maikoo, was rejected. That apart, as per order dated 09.02.2022, the aforesaid three accused opposite parties, namely, Prakash, Sone Lal and Maikoo have died. 4. So far as the rest of the three accused, namely, accused opposite party No. 1 Rai Singh, accused opposite party No. 2 Ram Veer and accused opposite party No. 3 Shripal are concerned, leave to appeal against them was granted by order dated 21.04.1988. 5. As per office report, based on the report of the Chief Judicial Magistrate, Etah bearing letter dated 06.10.2022, the accused opposite party No. 1 Rai Singh has died on 30.08.2022. Therefore, the present Government Appeal qua the accused opposite party No. 1 Rai Singh, is dismissed as abated. 6. Now, the present Government Appeal survives only against the accused opposite party No. 2 Ram Veer and accused opposite party No. 3 Shripal, who have been assigned the role of catching hold of the deceased Ranveer. The aforesaid two accused opposite party Nos. 2 and 3 are represented through their counsel, Sri S.K. Yadav. 7. Briefly stated the facts of the present case, as per prosecution are that the deceased Ranveer was attacked by the accused opposite party No. 1 Rai Singh by 'Gandasa' and the accused opposite party Nos. 2 and 3, namely, Ram Veer and Shripal had caught hold of the deceased. The incident took place at about 02:00 pm on 19.06.1983. The FIR being Case Crime No. 62/1983, under Section 302/120B IPC was registered at Police Station- Patiyali, District- Etah after about three hours i.e. at 05:05 pm. 2 and 3, namely, Ram Veer and Shripal had caught hold of the deceased. The incident took place at about 02:00 pm on 19.06.1983. The FIR being Case Crime No. 62/1983, under Section 302/120B IPC was registered at Police Station- Patiyali, District- Etah after about three hours i.e. at 05:05 pm. As per the FIR, the informant PW-1 Kaptan (brother of the deceased), PW-2 Ram Devi (mother of the deceased) and one Gokaran (uncle of the deceased) were eye witnesses of the incident. The aforesaid Gokaran was not examined by the prosecution during trial. The Investigating Officer came at the place of incident at about 06:00 pm on the same day and took samples of plain earth and blood of the deceased lying on the spot and prepared a recovery memo dated 19.06.1983. By another recovery memo, the blood stained clothes of the deceased and the cot on which he was killed were also recovered on the same day. The autopsy on the body of the deceased was conducted on the next day i.e. 20.06.1983 at 04:00 pm. As per post mortem report, the following ante mortem injuries were found on the body of the deceased: "i. Linear Abrasion 11 cm x 1/4 cm on the right side upper part of neck to the under margins of mandible (extending upwards). ii. Two incised wounds 5 cm x 2 cm each and 4 cm apart above and below on the right side of neck middle region. Both wounds are deep, muscle deep, margins are clear cut, plain horizontal. The muscle and tissues are cut in the line of injuries and great vessels (carotid) are cut. Haemotoma and extravasation of blood present." 8. As per post mortem report, the cause of death of the deceased was shock and haemorrhage due to ante mortem injuries. Charge sheet was submitted by the Police and charges were framed by the Trial Court on 16.03.1984 under Sections 302/34 read with Section 120B IPC. The prosecution examined two eye witnesses, namely, informant PW-1 Kaptan (brother of the deceased) and PW-2 Ram Devi (mother of the deceased). PW-3 S.P. Singh (S.I., Investigating Officer) was also examined. The Doctor, who conducted the autopsy on the body of the deceased, namely, Dr. M.K. Sharma, CMO Medical College, Meerut was examined as Court Witness (CW-1), who proved the post mortem report. PW-3 S.P. Singh (S.I., Investigating Officer) was also examined. The Doctor, who conducted the autopsy on the body of the deceased, namely, Dr. M.K. Sharma, CMO Medical College, Meerut was examined as Court Witness (CW-1), who proved the post mortem report. The accused opposite parties were examined under Section 313 Cr.P.C. After hearing the parties, the learned Trial Court passed the impugned judgment and order dated 10.10.1985 acquitting all the accused opposite parties briefly on the ground that the FIR is ante time, the evidence of PW-1 and PW-2 are inconsistent, the prosecution could not examine the eye witness Gokaran. There is inconsistency between ocular evidence of PW-1, PW-2 and the medical evidence i.e. post mortem report and the evidence of CW-1. FIR was lodged after discussion and the accused persons were falsely implicated on account of old enmity. Aggrieved with the impugned judgment and order of the learned Trial Court, the State has filed the present appeal. Submissions on behalf of the appellant: 9. Smt. Manju Thakur, learned A.G.A. for the appellant submits as under: (i) FIR is not ante-time inasmuch as it was lodged within three hours of the incident and looking into the distance from the place of incident to the Police Station which is about 17 kms, the FIR cannot be said to be delayed or ante-time (ii) The FIR was registered at about 05:05 pm on 19.06.1983, the Investigating Officer proceeded from the Police Station for the place of incident at about 05:30 P.M. and reached at the place of incident at about 06:00 P.M. and prepared recovery memo and took other steps. Thus, FIR is neither ante-time nor delayed. (iii) PW-1 and PW-2 both have stated that the accused opposite party Nos. 2 and 3 had caught hold of the deceased and the accused opposite party No. 1 had given two or three blows upon the deceased by 'Gandasa'. As per post mortem report, the deceased had sustained two injuries of 'Gandasa'. Thus, the ocular evidence of P.W.-1 and P.W.-2 is fully supported with the post mortem report. (iv) As per the evidence of PW-2 (mother of the deceased), the deceased took food about one hour before she came to him. She came to the deceased about two hours before the incident. Thus, as per the evidence of P.W.-2, the deceased would have taken food at least three hours before the incident. (iv) As per the evidence of PW-2 (mother of the deceased), the deceased took food about one hour before she came to him. She came to the deceased about two hours before the incident. Thus, as per the evidence of P.W.-2, the deceased would have taken food at least three hours before the incident. The P.W.-2 is a totally illiterate rustic lady. As per post-mortem report and the evidence of CW-1, no food was found in the large intestine. This fact, corroborates with the evidence of P.W.-2 as the deceased had taken food about three or four hours ago. Faecal matter was found in the small intestine as per evidence of CW-1. This also corroborates with the evidence of P.W.-2. (v) Motive was fully established inasmuch as, as per admitted case of the accused, they had enmity with the deceased and there was some criminal case lodged by the deceased in which the accused opposite party No. 1 was stated to have been acquitted subsequently. Thus, motive to kill the deceased has been established by the prosecution. (vi) Merely because one or other eye witness as mentioned in the F.I.R. or in the charge-sheet by the Police could not be examined by the prosecution, this shall not render the evidence of eye witnesses, P.W.-1 and P.W.-2 to be unreliable. The P.W.-1 and P.W.-2 are the important witnesses and their presence on the date, time and place of the incident could not be doubted. The P.W.-2 being mother was present on the spot at the time of the incident and is the most natural witness. The evidence of P.W.-1 and P.W.-2 are totally consistent and also corroborate with the post-mortem report and the FIR. (vii) The Trial Court has misread the evidence and ignored important evidence and, thus, the findings recorded by the Trial Court to acquit opposite parties, is perverse and, therefore, deserve to be set aside and the surviving accused-opposite parties deserve to be convicted. Submission on behalf of accused-opposite party nos. 2 and 3 10. Sri S.K. Yadav, learned counsel for the accused-opposite party nos. 2 and 3 submits as under: (i) The First Information Report dated 19.6.1983 is ante-time inasmuch the papers accompanying the dead body of the deceased were not bearing FIR No. 62/1983, therefore, the First Information Report was lodged after the autopsy of the deceased was conducted on the body of the deceased. 2 and 3 submits as under: (i) The First Information Report dated 19.6.1983 is ante-time inasmuch the papers accompanying the dead body of the deceased were not bearing FIR No. 62/1983, therefore, the First Information Report was lodged after the autopsy of the deceased was conducted on the body of the deceased. The learned Trial Court at internal page 6-7 of the impugned judgement has elaborately dealt with the question of ante-time FIR and came to the conclusion that the First Information Report was not registered at 5.05 P.M. on 19.6.1983 and it is highly suspicious. (ii) The P.W.-1 is not an eye witness. His presence is totally doubtful at the date, time and place of incident. In his examination-in-chief, he firstly stated that he went to his agricultural field at about 11.00 A.M. and returned from there at about 12.00 P.M. When question was put by Court, he stated that he went about 10-11 A.M. and thereafter further stated that he went about 8.00 A.M. and then again stated that he went about 10.00 A.M., therefore, this conflicting evidence of the P.W.-1 about going to his agricultural field, makes his presence at the date, time and place of the incident to be doubtful. (iii) The informant has not mentioned in the FIR that as to how many blows of 'Gandasa' were given by the accused-opposite party no. 1 on the body of the deceased. He simply stated that the accused-opposite party nos. 2 and 3 had caught hold of the deceased and the accused-opposite party no. 1 had given blow by 'Gandasa'. In his evidence, he attempted to improve by saying that 3-4 blows of 'Gandasa' were given by the accused-opposite party no. 1 to the deceased. The P.W.-2, eye witness has stated in his cross examination that 2-3 blows of 'Gandasa' were given by the accused-opposite party no. 1 while the accused-opposite party nos. 2 and 3 were catching hold the deceased. Thus, both the alleged eye witnesses have never been certain either at the time of lodging of the FIR or even during the course of third evidence as P.W.-1 and 2. This clearly renders the presence of P.W.-1 and 2 at the date, time and place of the incident to be highly doubtful. Thus, both the alleged eye witnesses have never been certain either at the time of lodging of the FIR or even during the course of third evidence as P.W.-1 and 2. This clearly renders the presence of P.W.-1 and 2 at the date, time and place of the incident to be highly doubtful. (iv) As per the evidence of C.W.-1 (the doctor who conducted autopsy on the body of the deceased) the stomach of the deceased was found empty and semi undigested food was found in the small intestine. This indicates that the deceased must have taken food before 7 or 8 hours. The stomach could not be empty before 8 hours. Under the circumstances, the incident must have taken place at least 8 hours before the time of incident i.e. the incident has taken place either early in the morning or in the night of 18/19.3.1983. The accused-opposite parties were not involved in the incident in which the deceased died due to injuries received by him of some sharp edged weapon. (v) The accused-opposite parties have been falsely implicated by the P.W.-1 on account of old enmity and the learned Trial Court has correctly and lawfully acquitted the accused-persons. (vi) The evidence of P.W-1 and 2 is unreliable and does not even under the category of neither wholly reliable nor wholly unreliable, therefore, no weight can be given to the evidence of P.W.-1 and 2. Therefore, the evidence of P.W.-1 and P.W.-2 being unreliable, the findings recorded by the Trial Court do not deserve to be interfered in this appeal. In support of his submissions, the reliance has been placed upon the judgement of Hon'ble Supreme Court in Mahendra Singh and Others v. State of M.P. (2022) 7 SCC 157 (paras 12, 13, 23 ) and in Khema @ Khem Chandra etc. v. State of Uttar Pradesh, 2022 SCC Online SC 991 (paras 21, 22 and 28). 11. Learned counsel for the opposite party has relied upon a judgement of Hon'ble Supreme Court in the case of Khema @ Khem Chandra (supra) for the proposition of categories of classification of evidences into three categories, namely, (i) wholly reliable; (ii) wholly unreliable; (iii) neither wholly reliable nor unreliable. The next judgement in the case of Mahendra Singh (supra) relied by learned counsel for the opposite parties is also on the same line. The next judgement in the case of Mahendra Singh (supra) relied by learned counsel for the opposite parties is also on the same line. In view of our findings that the evidence of eye witness, P.W.-1 and P.W.-2 are fully reliable, the aforesaid judgements relied upon by learned counsel are no help to opposite parties. 12. Learned AGA, on the point of variation between the medical evidence and the ocular evidence, has relied upon a judgement of the Hon'ble Supreme Court in Baleshwar Mahto and Another v. State of Bihar and Another (2017) 3 SCC 152 (para 11). Discussions and Findings 13. We have carefully considered the submissions of learned counsel for the parties and perused the original record. 14. The first submission made by learned counsel for the opposite parties on the question as to whether the FIR No. 62 of 1983 dated 19.6.1983 registered at about 5.05 P.M. under Sections 302, 120-B IPC, Police Station-Patiyali, District- Etah is ante-time? 15. We find that the aforesaid FIR was registered on oral information of the informant, P.W.-1, Kaptan Singh given at the Police Station-Patiyali at 5.05 P.M. on 19.6.1983 in which he named seven accused persons, namely, Ram Singh, Ramveer, Sripal, Prakash, Sone Lal, Maikoo and Sripal. Accused persons named in the FIR include the accused opposite parties. The starting time of preparation of inquest report is 6.30 P.M. and it was completed at 7.40 P.M. on 19.6.1983 as mentioned in the inquest report. The inquest bears the above Case Crime No. 62/1983, under Sections 302/120B IPC. In the inquest report, the Investigating Officer has also noted the position of the dead body of the deceased and found two incised wounds on the right side below the ear. The inquest bears signature of Panch witnesses. On the margin of the inquest report, opinion of Panchas has been recorded to the effect that the deceased has been killed by sharp edged weapon. The list of papers have also been mentioned which also includes copy of FIR. The inquest has been signed by the Panch witnesses and the Investigating Officer. The recovery memos prepared by the Investigating Officer on 19.6.1983 also bears the FIR being Case Crime No. 62/1983, under Sections 302/120B IPC, Police Station Patiyali. 16. The list of papers have also been mentioned which also includes copy of FIR. The inquest has been signed by the Panch witnesses and the Investigating Officer. The recovery memos prepared by the Investigating Officer on 19.6.1983 also bears the FIR being Case Crime No. 62/1983, under Sections 302/120B IPC, Police Station Patiyali. 16. The police paper for conducting autopsy on the body of the deceased sent by the Investigating Officer under his signature on 18.6.1983 is reproduced below: ^^fjiksVZ Fkkuk ifV;kyh Jheku~ lh0,e0vks0 egksn;] ,Vk Jheku th fuosnu gS fd e`rd j.kohj iq= yk[ku ;kno fuoklh eydk uxyk Fkkuk ifV;kyh] ,Vk lEcfU/kr eq0v0la0 62@1982 vUrxZr /kkjk 302@120&ch Hkk0na0la0] Fkkuk ifV;kyh dh yk'k okLrs iksLVekVZe Hksth tk jgh gSA iksLVekVZe djus dh d`ik dh tk,A e`rd diMs] Fkkuk gktk dks Hkstus dh d`ik djsaA** 17. The post-mortem of the deceased was conducted by the Medical Officer on 20.06.1983 at 04.00 pm at the District Hospital Etah. As per post-mortem report, the following ante-mortem injuries were found on the body of the deceased: "i. Linear Abrasion 11 cm x 1/4 cm on the right side upper part of neck to the under margins of mandible (extending upwards). ii. Two incised wounds 5 cm x 2 cm each and 4 cm apart (above and below) on the right side of neck middle region. Both wounds are deep, muscle deep, margins are clear cut, plain horizontal. The muscle and tissues are cut in the line of injuries and great vessels (carotid) are cut. Haemotoma and extravasation of blood present." 18. As per postmortem report, the cause of death was shock and haemorrhage due to ante-mortem injuries. Pursuant to the afore quoted letter of the Investigating Officer accompanying the dead body of the deceased for post-mortem, the clothes found on the body of the deceased were mentioned in the post-mortem report and were returned to the Police Station. 19. From the facts, as briefly noted above, it is clear that the F.I.R. bearing Case Crime No. 62 of 1982 under Sections 302/120B IPC, Police Station Patiyali, District Etah was registered at 5.05 PM, the Investigating Officer reached at the place of incident at about 6.00 P.M., preparation of inquest was started at 6.30 P.M. and was completed at 7.40 P.M. on the date of incident i.e. 19.6.1983. Police papers bearing details of the afore noted FIR were sent by the Investigating Officer along with the body of the deceased for post-mortem on the body of the deceased. In the inquest report in which the list of papers were mentioned, including the FIR which was signed by the Investigating Officer and Panch witnesses on 19.6.1983 itself. Thus, it is well proved beyond doubt that the F.I.R. was promptly lodged by the informant, P.W.-1, Kaptan Singh (brother of the deceased) at 5.05 PM on 19.6.1983, approximately three hours after the incident took place. The reason for time exhausted in lodging the FIR in question was explained in the F.I.R. by the first informant that he came on foot from his village to the Police Station. Distance of police station from the place of incident is mentioned in the F.I.R. to be 12 kilometres. Therefore, looking into the distance, the FIR in question, lodged by the first informant, P.W.-1, Kaptan Singh and other facts and evidences, as discussed above, leave no manner of doubt that the F.I.R. in question was lodged promptly by the P.W.-1 and it is not ante-time. The findings recorded by the Trial Court in the impugned judgement and order dated 10.10.1985 holding the F.I.R. in question to be ante-time, is totally perverse and based on misreading or ignorance of documentary evidence on record. 20. The second submission advanced by learned counsel for the opposite parties is on the point of the presence of eye witnesses (P.W.-1 and P.W.-2). We find that the FIR was lodged by the P.W.- 1, Kaptan Singh, who is the brother of the deceased. The P.W.-1, in his examination-in-chief, has stated that he came back from his agricultural field at about 12.00 in the afternoon and firstly he went to his house which is very close to the place of incident and thereafter he came to the place where the deceased, Ranveer and his mother Ram Devi were sitting. Again, he returned to his home. There is minor contradiction about the time which the P.W.-1 has stated for going to his agricultural field from his home in the morning but there is no contradiction that he returned and left the place where Ranveer and his mother were sitting at about 12.00 in the afternoon and came to his home. Again, he returned to his home. There is minor contradiction about the time which the P.W.-1 has stated for going to his agricultural field from his home in the morning but there is no contradiction that he returned and left the place where Ranveer and his mother were sitting at about 12.00 in the afternoon and came to his home. When the incident took place at about 2.00 P.M. on shouting of his mother, P.W.-1 Kaptan Singh came and he saw that the opposite party nos. 2 and 3 were fighting with the deceased Ranveer and threshed him down on the cot and then the accused opposite party no. 1, Rai Singh, who was having 'Gandasa' in his hand, gave blows from 'Gandasa' resulting in death of the deceased Ranveer. There is no contradiction in the evidence of P.W.-1. There is no material on record to doubt the presence of P.W.-1 at the time, date and place of incident inasmuch as the deceased and the P.W.-1 both are real brothers and their houses/Baithak were very close to each other as appears from the site plan prepared by the Investigating Officer, inasmuch as between the place of incident/Baithak of the deceased and the house of the P.W.-1 in the Village Aabadi, there were three vacant plots of Vijay Singh, Jorawar Singh and Chop Singh. The place from where the P.W.-1 has seen the incident and the place where the incident took place, are adjacent to each other as per site plan prepared by the Investigating Officer which is available in the lower court record. 21. So far as the presence of P.W.-2 is concerned, we find that P.W.-2 is the mother of the deceased and is a natural witness. The incident took place outside the Baithak/thatch of the deceased. There is neither inconsistency in the evidence nor there is any evidence on the basis of which her evidence can be said as doubtful. Under the circumstances, we hold that the presence of P.W.-1 and P.W.-2 on the date, time and place of the incident is neither doubtful nor can be doubted. 22. The next submission of learned counsel for the opposite parties is on the point as to whether there is inconsistency in the medical evidence, ocular evidence and the FIR with regard to the injuries caused to the deceased. 22. The next submission of learned counsel for the opposite parties is on the point as to whether there is inconsistency in the medical evidence, ocular evidence and the FIR with regard to the injuries caused to the deceased. In this regard, we find that in the FIR, the first informant has clearly mentioned that the accused-opposite party nos. 2 and 3 had thrown the deceased on the cot and the accused-opposite party no. 1 gave blows by 'Gandasa' on the neck of the deceased. Thereafter, on cry of the first informant and his mother, the uncle Gokaran and other villagers came on the spot and then the accused persons fled away. As per post-mortem report, two ante-mortem injuries on the neck of the deceased were found which have been mentioned above. Both wounds were muscle deep, margins were clear cut, plain horizontal. The muscles and tissues were cut in the line of injuries and great vessels (carotid) were cut. Haematoma and extravasation of blood was present. As per evidence of C.W.-1, the injury could be caused by 'Gandasa'. He expressed the opinion that both the injuries could be caused by 'Gandasa' and it could not be caused by single blow. The P.W.-1, eye witness has stated in examination-in-chief on question put by Court that several blows of 'Gandasa' were given by the accused to the deceased. In further cross-examination, he stated that it was in his presence that 3 or 4 blows were given by 'Gandasa' by the accused-opposite party no. 1 to the deceased. He also clearly stated that the accused-opposite party nos. 2 and 3 had thrown the deceased on cot and caught hold of him and thereafter accused opposite party no. 1 gave blow by 'Gandasa' to the deceased resulting in his death. The eye witness P.W.-2 has stated in her examination-in-chief that the accused-opposite party no. 2-Ramveer, accused-opposite party no. 3-Shripal had caught hold of the deceased on the cot and accused-opposite party no. 1, Rai Singh had given several blows by 'Gandasa' to the deceased and the deceased died due to injuries caused by the 'Gandasa'. In her cross-examination, she stated that 2 or 3 blows of 'Gandasa' were given by the accused to his deceased son. 3-Shripal had caught hold of the deceased on the cot and accused-opposite party no. 1, Rai Singh had given several blows by 'Gandasa' to the deceased and the deceased died due to injuries caused by the 'Gandasa'. In her cross-examination, she stated that 2 or 3 blows of 'Gandasa' were given by the accused to his deceased son. Thus, the ocular evidence of P.W.-1, P.W.-2 and C.W.-1 and medical evidence i.e. post-mortem report are consistent on the point that the deceased received two injuries by 'Gandasa' which resulted in his death. 23. In the case of Kamaljit Singh v. State of Punjab, (2003) 12 SCC 155 para (8) followed in Baleshwar Mahto and Another v. State of Bihar and Another (2017) 3 SCC 152 (para 11), Hon'ble Supreme Court has observed that it is trite law that minor variations between medical evidence and ocular evidence do not take away the primacy of the latter. Unless medical evidence in its term goes so far as to completely rule out all possibilities whatsoever of injuries taking place in the manner stated by the eyewitnesses, the testimony of the eyewitnesses cannot be thrown out. 24. The next argument of learned counsel for the opposite parties as well as the findings recorded by the Trial Court on the question of time of death on account of stomach condition of the deceased, we find that the P.W.-2, Ram Devi (mother of the deceased) has stated in her evidence that she was sitting near his deceased son about two hours before the incident and about one hour before that his deceased son had taken meal. She also stated that she is totally illiterate and cannot tell the time. As per post mortem report, the stomach of the deceased was found empty and in small intestine semi solid digested food material in small amount was found. The large intestine contained gases and faecal material. The C.W.-1 has opined that the deceased could not have taken meals four hours before his death. The learned Trial Court came to the conclusion that the deceased Ranveer would have taken meal much before his death. Accordingly, he has drawn inference that some unknown persons would have killed. Thus, finding of the learned Trial Court is perverse on the face of the record inasmuch as the First Information Report was lodged at 5.05 P.M. on 19.6.1983. The learned Trial Court came to the conclusion that the deceased Ranveer would have taken meal much before his death. Accordingly, he has drawn inference that some unknown persons would have killed. Thus, finding of the learned Trial Court is perverse on the face of the record inasmuch as the First Information Report was lodged at 5.05 P.M. on 19.6.1983. As per evidence of P.W.-2, who is an illiterate lady, the deceased Ranveer would have taken meals about 3-4 hours before the incident. The time told by the P.W.-2, an illiterate lady, is a rough time and not an accurate time. But in all probabilities, the deceased must have taken meal about 4 hours before his death. 25. In the case of P. Venkaiah v. State of Andhra Pradesh, AIR 1985 SC 1715 , Hon'ble Supreme Court observed that medical science is not yet so perfect as to determine the exact time of death nor can the same be determined in a computerised or mathematical fashion so as to be accurate to the last second. 26. In the case of Jitender Kumar v. State of Haryana, AIR 2012 SC 2488 , Hon'ble Supreme Court observed that normally stomach becomes empty within 2-3 hours of taking meals, but no absolute rule of universal application could be laid down in this regard. It would depend on various factors and the time of death will have to be assessed through the doctor's estimation with reference to other corroborative evidence. 27. In Mookkiah and Another v. State, AIR 2013 SC 321 . In Akhtar v. State of Uttaranchal, (2009) 13 SCC 722 , Hon'ble Supreme Court observed that existence of semi-digested food in the stomach more than five hours of death was found to be possible. 28. In Masjit Tato Rawool v. State of Maharashtra, AIR 1971 SC 2119 , Gopal Singh v. State of Uttar Pradesh, AIR 1979 SC 1822 and Sheo Darshan v. State of Uttar Pradesh, AIR 1971 SC 1794 , Hon'ble Supreme Court observed that 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. 29. 29. In Sheo Darshan (supra), Hon'ble Supreme Court further observed that the presence of faecal matter in the intestines is not conclusive, as the deceased might be suffering from constipation. It was further observed that 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. 30. In R. Prakash v. State of Uttar Pradesh, (1969) 1 SCC 48 , Page 50, Hon'ble Supreme Court observed that the question of time of death of the deceased 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 decisive. 31. In Kananji v. State of Uttar Pradesh, AIR 1975 SC (CR) 662, Hon'ble Supreme Court observed that as per prosecution case, the accused committed the murder of the deceased at 4 P.M. In the post-mortem examination, semi-digested food was found in the stomach of the deceased, and the medical officer, on the basis thereof, deposed that the deceased must have consumed food some three to four hours before the murder. The oral evidence in the case ruled out the possibility of murder having taken place in the early hours of the morning. On this fact, the accused was convicted for murder. 32. In Charan Singh v. State of Punjab, AIR 1975 SC 246 , briefly stated the facts were that in the post-mortem examination, the stomach of each of the two deceased was found empty. The time of the occurrence according to the prosecution was 5 P.M. It was suggested on behalf of the accused that the occurrence took place not at 5 P.M. but much earlier. The Supreme Court repelled this suggestion observing that normally a vegetable diet containing mostly farinaceous food as usually taken by an Indian does not leave the stomach completely empty within six to seven hours after its ingestion. If the occurrence would have taken place at 2 or 3 pm as suggested on behalf of the accused, the mid-day meals usually taken by the villagers at about 11 am, would still be in their stomachs and the same would not have been empty at the time of the post-mortem examination. 33. If the occurrence would have taken place at 2 or 3 pm as suggested on behalf of the accused, the mid-day meals usually taken by the villagers at about 11 am, would still be in their stomachs and the same would not have been empty at the time of the post-mortem examination. 33. The above noted few judgements of Hon'ble Supreme Court have been referred by us just to note the settled law with regard to the empty status of stomach, presence of semi digested food in stomach and determination of time of death. Medical science is not yet so perfect as to determine the exact time of death nor can the same be determined in a computerised or mathematical fashion so as to be accurate to the last second. The question of death of 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 decisive. It is also settled law that the state of contents of 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. 34. In the present set of facts, we find that there are direct evidence by P.W.-2 eye witness which goes to prove that the incident took place at about 2 pm on 19.6.1983. As per evidence of P.W.-2, the deceased would have taken food about four hours before his death. Thus, in the absence of food in the stomach and presence of little semi digested food in the small intestine clearly corroborates with the ocular evidence of P.W.-2. It also corroborates with the ocular evidence of C.W.-1 when he expressed his opinion that the deceased would not have taken food within four hours of his death. The evidence of eye witness (P.W.2) reveals that the meal was taken by the deceased about 3-4 hours before his death. 35. Considering all these facts and evidence on record, we do not find any inconsistency in the ocular evidence and the medical evidence as to the time of death of the deceased Ranveer. The evidence of eye witness (P.W.2) reveals that the meal was taken by the deceased about 3-4 hours before his death. 35. Considering all these facts and evidence on record, we do not find any inconsistency in the ocular evidence and the medical evidence as to the time of death of the deceased Ranveer. Contrary observations made in the judgement of the Trial Court is based on misreading of the evidences and ignorance of settled law on the point. 36. The question of reliability of the two eye witnesses has been specifically raised by learned counsel for the accused-opposite party nos. 2 and 3 who supported the findings recorded by learned Trial Court in the impugned judgement doubting the presence of the eye witness. We have already noted the facts in this regard in earlier parts of this judgement which need not to be repeated. We have also found that there is no inconsistency between the ocular evidence of P.W.-1 and P.W.-2 and medical evidence. The P.W.-1 is the real brother of the deceased and his house is very near to the place of incident/thatch of the deceased. The P.W.-2 is the mother of the deceased who was sitting with the deceased at the time when the incident took place. There is neither any material on record nor defence could lead any evidence to disprove the evidence of P.W.-2 that she was sitting near the deceased at the time when the incident took place. She being the mother and sitting outside the house with her deceased son, is a natural witness who has seen the incident and narrated it in her evidence. Even in cross examination nothing adverse could be brought out, on the basis of which the evidence of P.W.-2 may be disbelieved or may be said to be unreliable or not wholly reliable. Her evidence is also not inconsistent with the FIR. Thus, both the eye witnesses are reliable witnesses and cannot be said to be not reliable or not wholly reliable as suggested by learned counsel for the opposite party nos. 2 and 3. 37. Her evidence is also not inconsistent with the FIR. Thus, both the eye witnesses are reliable witnesses and cannot be said to be not reliable or not wholly reliable as suggested by learned counsel for the opposite party nos. 2 and 3. 37. In the case of State of U.P. v. Krishna Gopal and Another, (1988) 4 SCC 302 , Hon'ble Supreme Court observed that when the acquittal by the Trial Court was found to be on the basis of unwarranted and manifest erroneous appreciation of evidence by ignoring valuable and creditable evidence resulting serious and miscarriage of justice, it cannot be said to be at fault while interfering with such judgement of the Trial Court. In the present set of facts as discussed in afore going paragraph of this judgement, the Trial Court has passed the impugned judgement ignoring valuable and credible evidence and drawn manifest erroneous appreciation of evidence. The findings recorded by the Trial Court in the impugned judgement are perverse. Therefore, the impugned judgement and order passed by the Trial Court deserves to be interfered with. 38. For all the reasons afore stated, we are of the firm view that the accused-opposite parties are guilty of the deceased Ranveer and the accused-opposite party nos. 2 and 3 having conspired, shared common intention by catching hold of the deceased to enable the accused-opposite party no. 1 to give repeated blows of 'Gandasa' causing death of the deceased. Thus, they left no chance for the deceased to escape to save his life. The accused-opposite party no. 1 has already died. The accused-opposite party nos. 2 and 3 are surviving. Therefore, we hold that the accused-opposite party nos. 2 and 3 are guilty of committing offence under Sections 302/34 read with Section 120B IPC for committing murder of the deceased Ranveer. The impugned judgement and order dated 10.10.1985 in Sessions Trial No. 742 of 1983 (State v. Rai Singh and others) (arising out of Case Crime No. 62 of 1983, Police Station Patiyali, District-Etah) passed by the Second Additional District and Sessions Judge, Etah is hereby set aside and the accused-opposite party Nos. 2 and 3 are held to be guilty of committing murder of the deceased Ranveer and are liable for punishment under Sections 302/34 read with Section 120B IPC. The Government Appeal is allowed. Order on quantum of sentence 39. 2 and 3 are held to be guilty of committing murder of the deceased Ranveer and are liable for punishment under Sections 302/34 read with Section 120B IPC. The Government Appeal is allowed. Order on quantum of sentence 39. We have heard Smt. Manju Thakur, learned AGA for the appellant and Sri S.K. Yadav, learned counsel for the accused-opposite party nos. 2 and 3 on quantum of sentence. 40. Learned counsel for the accused-opposite party nos. 2 and 3 submits that the accused-opposite party no. 1 has already died. Consequently, the appeal qua the accused-opposite party no. 1 has been abated. Therefore, no sentence deserves to be awarded to him. With regard to the accused-opposite party nos. 2 and 3, he submits that the incident is of the year 1983 and the accused-opposite party nos. 2 and 3 may be about 70 years old. He further submits that the present case does not fall in the category of rarest of the rare circumstances and, therefore, awarding of sentence to them needs to be considered with a lenient view. 41. Learned AGA submits that a heinous crime has been committed by the opposite parties and, therefore, they do not deserve any leniency. However, she does not dispute the surviving opposite party nos. 2 and 3 must be aged and fragile person at present. 42. Considering the submissions of learned counsel for the parties on the question of quantum of sentence, we award life imprisonment to opposite party nos. 2 and 3. The opposite party nos. 2 and 3 shall forthwith surrender before the Court concerned and the Court concerned shall immediately send them to jail to serve out the sentence, as above. 43. Office is directed to communicate this order to the court concerned for compliance forthwith. The record of the lower court be returned to the trial court forthwith. 44. After the judgement and order was dictated in open Court, learned counsel for the opposite parties submits that they may be considered for remission. In this regard, we are not inclined to express any opinion on the question of remission and leave it open for the opposite party nos. 2 and 3 to avail remission in accordance with law and if permissible under law.