Uma Nath and Others vs State of U.P.

Pratyush Kumar, J.—1. The present appeal filed by appellants is directed against judgment and orders dated 8th August, 1991 passed by Sri S.K. Pandey, the then Special/Additional Sessions Judge, Gonda in Sessions Trial No. 616 of 1987 under sections 302, 201, 506 (Part II) IPC convicting and sentencing them to undergo imprisonment for life and to pay a fine of Rs. 2,000/- each and in default of payment of fine, to undergo two years'' rigorous imprisonment each under the first count, to two years'' rigorous imprisonment each and to pay a sum of fine of Rs. 500/- each and in default of payment of fine, to undergo six months'' rigorous imprisonment under the second count, to two years'' rigorous imprisonment, each under the third count, further convicting appellant Nos. 1 to 4 under section 148 I.P.C., 5 and 6 under section 147 I.P.C. and awarding a sentence to each of the concerned appellants of one year''s rigorous imprisonment of on the aforesaid count, sentences of the appellants were directed to run concurrently.

During the pendency of the appeal appellant No. 5 Hanuman Datt and appellant No. 6 Pateshwari had died and their appeal stands abated vide court order dated 4th September, 2013.

We have heard Sri I.B. Singh learned counsel for the appellants, Sri Shrawan Kumar Singh and Mohan Singh learned counsel for the complainant and Sri Umesh Verma learned AGA for the State.

In the appeal facts of the prosecution case may be summarized as under:

That on 1st July, 1987 at 9.35 A.M. at P.S. Dhaneypur, District Gonda first informant Rama Kant gave a written report stating therein that he was watcher in the forest department. On 30th June, 1987 he along with his brother-in-law Jhabboo had gone to patrol the forest. In the evening, in front of his western door of the house Pateshwari, Uma Nath and others erected a chappar and started to make there a wall with bricks, at that when his mother objected she was abused. That day in the morning Uma Nath, Ram Rasayan, Isar Saran sons of Pateshwari, Hanuman Datt, Pateshwari and Prem Narayan alias Goge were raising and strengthening said wall with the help of mortar and bricks, he and his brother-in-law asked them not to construct the wall. At that those persons had abused him and his brother-in-law and while sharing the common object armed with lathi and ballam chased them for beating. At about 6 A.M. his brother-in-law, who was running towards east and reached field of his aunt he was surrounded by the assailants. Uma Nath, Prem Narayan alias Gage, Ram Rasayan, Isar Saran with ballam and Hanuman Datt and Pateshwari with lathi started to belabour him and exhorted to kill him. On his hue and cry Ram Naresh, Talukdar Dubey, Bachhraj Tiwari of his village and Prem Nath came there running and saw the occurrence. His brother-in-law after sustaining injuries from lathi and ballam had fallen down and after writhing died. The accused persons took the body of his brother-in-law and kept it at the door of Pateshwari and exhorted had any one approached there he would be murdered.

At this, chick FIR was scribed. Case Crime No. 62/87 under sections 147, 148, 149 and 302 IPC was registered, requisite entry was made in the general diary. Investigation of the case was taken over by S.I. Ram Sakal Singh, the then station officer of the police station who immediately started the investigation and recorded the statement of Rama Kant and reached the spot at 11.40 A.M., held the inquest proceedings and sent the dead body to the mortuary. He also examined inquest witnesses, eye witnesses, inspected the spot, prepared the site plan, he could not find blood stains on the scene of occurrence. He raided the houses of the accused persons, they could not be found. Process under section 82/83 Cr.P.C. was obtained and executed on 9th July, 1987. On the information he recovered two ballam i.e. weapons of murder from the corn field of Ram Gopal of village Matahi who happened to be father-in-law of one accused. After conclusion of investigation he submitted the charge sheet against all the named accused persons.

In the Court of Session appellants Uma Nath, Ram Rasayan, Isar Saran, Prem Narayan alias Goge were charged under section 302/149, 148 IPC. Appellants Hanuman Datt and Pateshwari since deceased were charged under sections 147, 302/149 IPC. They were separately charged under section 201/149, 506 (2)/149 IPC. All the accused persons denied the charges and claimed to be tried.

In order to prove the charges on behalf of the prosecution in documentary evidence, besides other papers, written report Ext. Ka-1, FIR Ext. Ka-2, Inquest report Ext. Ka-4, report Ext. Ka-8, recovery memo Ext. Ka-15 to Ka-17 and Ka-19, Site plan Ext. Ka-18 and Ka-20, Postmortem report Ext. Ka-23, FIR Ext. Ka-24, Copy of report Ext. Ka-25 and Ka-26 Copy of Inthab Register Ext. Ka-27 and Letter Ext. Ka-22 were filed.

In the oral evidence prosecution has examined 11 witnesses. Thereafter statements of accused persons under section 313 Cr.P.C. were recorded. They pleaded ignorance about the measurement of the land. They claimed exchange of land between Shyam Dhar and Raj Mani. They denied that deceased Jhabboo Pandey was brother-in-law of the first informant. They also denied the rest of the facts stated by the prosecution witnesses. According to them witnesses are relative, on account of enmity they were falsely deposing against them. According to Prem Narayan Prathvi Raji belonged to their family. Raj Mani contested her claim to the land and lost. Prathvi Raji executed a sale deed of her land in favour of Hanuman and Pateshwari. On account of this enmity he was falsely implicated. Jhabboo was not married to the sister of the first informant but took her as wife in his house. He was resident of district Basti and a criminal having history sheet. In the night he was murdered somewhere else and false FIR was lodged by the first informant. Rest of the appellants adopted the statement of Prem Narayan alias Goge.

In the defence one witness S.I. Ram Saran Srivastava D.W. 1 Trilokpur District Siddharth Nagar was examined to bring on record criminal antecedent of deceased Jhabboo.

The learned trial Judge after hearing the arguments for the parties found the prosecution version trustworthy. He rejected the arguments advanced on behalf of the appellants that motive could not be proved, FIR was ante timed, place and time of occurrence could not established and witnesses were planted. He convicted all the six accused persons and sentenced them as above.

On behalf of the surviving appellants very briefly the points taken before the trial court have been submitted before us in support of the appeal and the learned counsel for the appellants has also taken us through the statements of three eye witnesses examined by the prosecution. According to the learned counsel the first informant is an inimical witness. His evidence is contradicted by medical evidence. Evidence of Ram Naresh has been criticized on the basis that his location in the site plan has not been shown. Testimony of Prem Nath P.W. 3 has been impeached on the ground that he is a chance witness.

On behalf of the state respondent the learned AGA has repelled these arguments in detail. We will deal with these arguments at the relevant place.

Before we propose to deal with the arguments submitted by the respective parties, we would like to recollect the manner in which appeal against conviction is required to be considered by this Court and scope of jurisdiction conferred on the Court by Sections 374 and 386 Cr.P.C. Further we would like to refresh the observation made by the Apex Court in the case of Ishvarbhai Fuljibhai Patni Vs. State of Gujarat [, 1995 Supreme Court Cases (Crl) 222]. Para-4 of the judgment reads as under:

"4. Since, the High Court was dealing with the appeal in exercise of its appellate jurisdiction, against conviction and sentence of life imprisonment, it was required to consider and discuss the evidence and deal with the arguments raised at the bar. Let alone, any discussion of the evidence, we do not find that the High Court even cared to notice the evidence led in the case. None of the arguments of the learned counsel for the appellant have been noticed, much less considered and discussed. The judgment is cryptic and we are at loss to understand as to what prevailed with the High Court to uphold the conviction and sentence of the appellant. On a plain requirement of justice, the High Court while dealing with a first appeal against conviction and sentence is expected to, howsoever briefly depending upon the facts of the case, consider and discuss the evidence and deal with the submissions raised at the bar. If it fails to do so, it apparently fails in the discharge of one of its essential jurisdiction under its appellate powers. In view of the infirmities pointed out by us, the judgment under appeal cannot be sustained."

In the case of Lal Mandi, Appellant v. State of West Bengal, Respondent [, 1995 CRI.L.J. 2659 (Supreme Court), 2659], the Apex Court in para-5 of the report has given the caution to the High Court reminding its duty in the matter of hearing of appeal against conviction. It would be gainful to reproduce the observation made in para-5 of the report, extracted below:

"5. To say the least, the approach of the High Court is totally fallacious. In an appeal against conviction, the Appellate Court has the duty to itself appreciate the evidence on the record and if two views are possible on the appraisal of the evidence, the benefit of reasonable doubt has to be given to an accused. It is not correct to suggest that the "Appellate Court cannot legally interfere with" the order of conviction where the trial court has found the evidence as reliable and that it cannot substitute the findings of the Sessions Judge by its own, if it arrives at a different conclusion on reassessment of the evidence. The observation made in Tota Singh''s case, which was an appeal against acquittal, have been misunderstood and mechanically applied. Though, the powers of an appellate court, while dealing with an appeal against acquittal and an appeal against conviction are equally wide but the considerations which weigh with it while dealing with an appeal against an order of acquittal and in an appeal against conviction are distinct and separate. The presumption of innocence of accused which gets strengthened on his acquittal is not available on his conviction. An appellate court may give every reasonable weight to the conclusions arrived at by the trial court but it must be remembered that an appellate court is duty bound, in the same way as the trial court, to test the evidence extrinsically as well as intrinsically and to consider as thoroughly as the trial court, all the circumstances available on the record so as to arrive at an independent finding regarding guilt or innocence of the convict. An Appellate Court fails in the discharge of one of its essential duties, if it fails to itself appreciate the evidence on the record and arrive at an independent finding based on the appraisal of such evidence."

In the present matter challenge to the ocular version of the occurrence has also been made on the basis of medical evidence. This necessitates us first to examine the medical evidence which consists of statement of Dr. M.Z. Hasan P.W. 7 and postmortem report Ext. Ka-23. Dr. M.Z. Hasan P.W. 7 has stated that on 2nd July, 1987 at 4.25 P.M. he performed the autopsy of the dead body of Jhabboo. Rigor mortis had passed from upper extremities but was present on lower extremities. Pleura and lungs were punctured. In the stomach two ounce of pasty food was found. In the large intestine gases and faecal matter were found. According to him death had occurred due to shock and haemorrhage as a result of ante mortem injuries. Death could have occurred at the stated time and date. According to him punctured wounds were caused by sharp edged weapon such as ballam. Ante mortem injury No. 14 could have been caused by lathi. Injury No. 15 by friction. The ante mortem injuries were cumulatively sufficient to cause death in the ordinary course of nature. He has proved the postmortem report Ext. Ka-13 wherein the following ante mortem injuries were recorded:

(i) Punctured wound; 1 c.m. x 0.5 c.m. x bone cut over Lt. Side face over maxillary bone.

(ii) Punctured wound; 2 c.m. x 0.5 c.m. x muscle deep over the Lt. Side lower part neck. Cutting skin & Vessels.

(iii) Punctured wound; 2.5 c.m. x 0.5 c.m. x chest cavity deep over Rt. side horizontal, (sic) space (Inter costel), cutting, skin, muscles & pleura & Rt. Lung.

(iv) Punctured wound; 1.5 c.m. x 0.5 c.m. x chest cavity deep over middle of sternum (sic) towards right side cutting skin, sternum & pleura.

(v) Punctured wound; 3 c.m. x 0.5 c.m. x chest cavity deep 5 c.m. above nipple in III Intecostel space directed backword, cutting the skin, Muscle and pleura and lung.

(vi) Puncherd wound; 1.5 c.m. x 0.5 c.m. x chest cavity deep 10 c.m. below injury No. 5 cutting the skin, muscle in 9th intercostel space and lung.

(vii) Punchard wound; 2 c.m. x 0.5 c.m. x chest cavity deep in mid axillary line 11 c.m. lateral to injury No. 6 cutting (sic) skin, pleura and lung.

(viii) Punchard wound; 1.5 c.m. x 0.5 c.m. x muscle deep over Rt side interior fold of axilla cutting skin and muscle.

(ix) Punctured wound; 1.5 x 0.5 c.m. x chest cavity deep over Rt. side, 5 c.m. below nipple, entering the abdominal cavity, cutting skin and liver.

(x) Punctured wound 1.5 c.m. x 0.5 c.m. x chest cavity deep over Rt. side 12 c.m. below nipple, cutting skin, 9th intrcostal space and sic liver is Punctured.

(xi) Punctured wound; 1.5 c.m. x 0.5 c.m. x muscle deep over Rt. thigh 9 c.m. above knee.

(xii) Punctured wound 1 c.m. x 0.5 c.m. x muscle deep left thigh lateral aspect.

(xiii) Punctured wound 3 c.m. x 1 c.m. x muscle deep over inner aspect Rt. thigh.

(xiv) Contusion 8 c.m. x 6 c.m. over Rt. knee.

(xv) Abrasion 6 c.m. x 4 c.m. over left knee.

During cross examination homicidal death of the deceased was not disputed nor impartiality of this witness was questioned. He was cross examined on the points of time of death, how much an average build person would bleed and how long and about the duration which the food takes to turn pasty. The witness deposed that variation of 3-4 hours was possible on either side about estimated time of death. Average build persons would bleed excessively. After death bleeding would stop, only serum continue to come out but no time can be fixed when it would stop. According to him after taking food in 3-4 hours it becomes pasty. None of the stab wound could be caused by sharp edged weapon having broad edge. What we gather from the cross examination is that homicidal death of the deceased was not challenged and also facts perceived by the witness during autopsy and deposed before the court were not challenged. Only his opinion about time of death and quantity of bleeding were solicited. Leaving aside his opinion part, which we propose to deal with ocular version of the occurrence, we hold him to be reliable witness and on the basis of his deposition duly corroborated by Ext. Ka-23 we further hold that deceased Jhabboo was done to death by sharp edged weapons, his death could have occurred at the stated date and time.

In the present case prosecution has adduced three eye witnesses. Rama Kant P.W. 1 is the first informant and brother-in-law of the deceased. Ram Naresh P.W. 2 is the second eye witness and Prem Nath is the third eye witness who had seen the second part of the incident which took place in the field of Ram Pyari where the deceased was done to death by the assailant.

Rama Kant P.W. 1 has reiterated the version contained in the FIR. According to him after taking breakfast he and his brother-in-law came out of the house and saw the appellants strengthening the wall of the mahara constructed one day before in their absence. They objected. Thereat, the appellants started to abuse them and chase them. Hanuman Datt was exhorting them to kill him and his brother-in-law. He was running ahead of his brother-in-law and took shelter in a chhapar. His brother-in-law ran towards east. He was caught by the appellants in the field of Ram Pyari and done to death. According to him at some distance he followed his brother-in-law and appellants. On his hue and cry persons came there. The appellants took the dead body of his brother-in-law to the house of Pateshwari. This narration shows that presence of the witness is natural and probable at both the places. Though it has been disputed before the trial court on behalf of the appellants that the deceased was brother-in-law of the witness but it was also admitted to them that sister of the witness was living with the deceased. Thus his presence cannot be doubted upon at the time of occurrence. He had every opportunity to see the occurrence. During cross examination nothing could be extracted to adversely affect the credibility of the witness. It is also admitted to both the parties that there was dispute between the witness and the appellants. Prior to the occurrence litigation had taken place. It was on account of property of Prathvi Raji. Though this witness has been termed as inimical witness and on this count it has been urged that his testimony should be discarded but testimony of inimical witness cannot be discarded on account of enmity provided after careful scrutiny it is found trustworthy.

Being first informant first attack on his testimony is made on the basis that FIR was ante timed. The incident took place on 1st July, 1987 at 6 A.M. FIR has been lodged at 9.35 A.M. on that day. Distance from the place of occurrence to the police station is 10 K.M. Prima facie first information report has been lodged promptly. On behalf of the appellants it has been argued that FIR is delayed and it was ante timed to strengthen the prosecution case. The learned counsel for the appellants, in support of this argument, has drawn attention to this fact that the wireless sent to the higher authorities informing them about the occurrence was not based on the first information report. On behalf of the prosecution S.I. Satish Chandra P.W. 4 was examined to show that information about the crime was sent to higher authorities at 10.55 A.M. by radiogram. He produced the register, proved the entry, copy whereof is Ext. Ka-3. From his evidence it transpires that in the radiogram there was no reference to the use of lathi. There were some cuttings, names of the accused persons were not disclosed. These grounds were rejected by the learned trial Judge on the ground that each cutting bore initials. Thus they were duly acknowledged and authenticated. Two other reasons were rejected by him on the ground that purpose of radiogram was to inform the authorities about the incident. Considering the means of communication it was not supposed to be containing all the details. At the most absence of the indicated details can be said to be lapse on the part of the police. It is established that radiogram was promptly sent. For the reasons found acceptable by the trial Judge we cannot accept that FIR was ante timed and evidence of first informant on this score cannot be discarded.

The second ground for impeaching the credibility of the testimony of Rama Kant P.W. 1 is that the prosecution has failed to prove motive for the crime. Though it is a case of direct evidence and motive does not bear significance in such case. According to prosecution version the appellants constructed a chhappar on the land of the first informant in his absence. When informed by his mother, he and his brother-in-law objected while the appellants were strengthening and constructing the brick wall of the chhappar. Though this fact was denied on behalf of the appellants in their statement recorded under section 313 Cr.P.C. however, replies given by the witness during cross examination shows that Prathvi Raji belonged to the family of the first informant, with whom father of the first informant had litigation during consolidation operation. In the consolidation operation Prathvi Raji got 13-1/2 bigha land and this land was sold by her to the appellants. Though she was aunt of the first informant but she lived in the house of appellant Hanuman Datt (since deceased). The appellant Pateshwari (since deceased) procured sale deed of the house of Prathvi Raji by showing it to be an open plot. This disputed property is adjacent to the house of the first informant. It has been shown in the site plan by letter ''C''. At this land chhappar was constructed and brick wall was being raised by the appellants. According to this witness this land belonged to him and the appellants wanted to usurp this land. On this point testimony of the witness remained unshaken. For this reason we notice that immediate provocation for altercation, which ensued in physical assault and resulted in the death of the deceased stood proved and keeping in view these facts we are unable to find any fault with the testimony of the witness.

The third ground is that in the postmortem report in the stomach two ounce pasty food was found. According to the doctor M.Z. Hasan P.W. 7 during autopsy he found two ounce digested food in the stomach and during cross examination he has opined that after taking the food it would turn pasty after 3-4 hours, whereas according to Rama Kant P.W. 1 in the morning he and the deceased ate paratha and took tea, those were taken by them 1/2 hours before they came out of the house. On this basis the learned counsel for the appellants has submitted that from the medical evidence statement of Rama Kant P.W. 1 stands falsified and no reliance can be placed on it. In support of this argument he has referred the following cases:

(1) Omkar Vs. State of U.P. , 1992 Cr.L.J. 3179. In this case according to the ocular version before the incident deceased had not taken any food but during autopsy digested food was found in the stomach of the deceased.

(2) Narendra Singh alias Nate Singh Vs. State of U.P. , 2003 Cr.L.J. 205. In this case pasty food material was found in small intestine. Faecal matter was found in large intestine. On 22nd June, 1994 at 5.15-5.30 A.M. deceased was done to death. On account of the facts noticed by doctor during autopsy ocular version was discarded and incident was treated to have taken place prior in time.

(3) State of U.P. Vs. Suraj Pal vide judgment dated 22nd August, 2007 a Division Bench of this Court has disbelieved the prosecution version on the ground that during post mortem 400 gm semi digested rice and dal were found in the stomach of the deceased. According to doctor the deceased was done to death within two hours after taking meal. Whereas according to the prosecution version deceased had taken his meal before noon and he was murdered at 5.45 p.m.

(4) Ram Asaraya Singh Vs. state of U.P. vide judgment dated 7th December, 2004 a Division Bench of this Court has noticed that the doctor found pasty food material in the stomach of the deceased. Food is converted into pasty 2-3 hours after consumption. According to the prosecution version occurrence had taken place at 8 A.M. For this reason ocular version of occurrence was discarded.

In reply to this argument the learned AGA has submitted that on the basis of the contents of the stomach ocular version of the occurrence cannot be discarded. In support of his argument he has referred the case of Shivaji Sahabrao Bobade and another Vs. State of Maharashtra , 1973 SCC (Crl) 1033. Reliance has been placed on para 11 of the report. In order to clarify the settled legal position we would like to reproduce para 11 of the report which explains the observation made in para 11 reads as under:

"That Hariba died of violence on September 26, 1966, is indubitable, but who did him to death is a moot point. The lethal attack is alleged to have been made on a cart-track lying between the two villages Bibi and Ghadgewadi in the afternoon on a bazaar day in the former village when people must evidently have been moving about. The macabre story of an old man, Hariba, being killed on a road near village Bibi around 5.30 p.m. by two known persons, Shivaji and Lalasaheb was recounted by one Balakrishna (P.W. 2) before the police Patil (P.W. 15) in less than an hour of the incident (vide Ex. 8 and Ex. 36). Thus, the first information has been laid promptly, if we assume the hour of death to have been correctly stated there. Ext. 8 does mention briefly the material facts and the crucial witnesses in what may be treated as a hurriedly drawn up embryonic documents. The contention of counsel for the respondents before us, which has received judicial reinforcement by acceptance by the Sessions Judge, is that this first information is an ersatz product of many minds manipulating to make it, and the apparently short, honest interval between the occurrence and the report to the Patil is a make-believe, the death having occurred beyond doubt at about 2.00 p.m. and not at 5.30 p.m. as the prosecution disingenuously pleads. Reliance is primarily placed for this pre-clocking of the occurrence on the post-mortem, certificate, doctor''s evidence and the medical experties contained in Modi''s Medical Jurisprudence. Admittedly, ''semi-digested solid food particles'' were observed in the deceased''s stomach by P.W. 4 the medical officer, and the inference sought to be too neatly drawn therefrom is that the man must have come by his end (and that the digestive process must also have come to a halt with it) 2 to 3 hours after his last lunch, which, according to P.W. 2, was at 10.00 a.m. If he did die before 2.00 p.m. everything else in the prosecution evidence became suspect, argued the court. The assurance of this assertion, however, turns on the exact accuracy, in terms of the I.S.T., of the testimony of P.W. 5 who swore that himself and the deceased had taken food on the fateful day at about 10.00 or 10.30 a.m. before setting out for Bibi. The sluggish chronometric sense of the country-side community in India is notorious since time is hardly of the essence of their slow life, and even urban folk make mistakes about time when no particular reason to observe and remember the hour of minor event like taking a morning meal existed. 10.30 a.m. cold well have been an hour or more one way or the other and too much play on such slippery facts goes against realism so essential in a testimonial appraisal. More importantly, the Court must not abandon a scientific attitude to medical science if it is not to be guilty of judicial superstition. To quote Modi''s medical Jurisprudence that food would be completely digested in four to five hours or to swear by the doctor to deduce that death must have occurred within 3 hours of the eating and, therefrom, to argue that the presence of undigested food in the dead body spells the sure inference that death must have occurred before 2.00 p.m. is to mis-read the science on the subject of digestive processes. Modi''s medical Jurisprudence, extracts from which have been given by both the Courts, makes out that a mixed diet of animal and vegetable foods, normally taken by Europeans, takes 4 to 5 hours for complete digestion while a vegetable diet, containing mostly farinaceous food usually consumed by Indians, does not leave the stomach completely within 6 to 7 hours after its ingestion. Indeed, the learned author cautiously adds that the stomachic contents cannot determine with precision the time of death "in as much as the power of digestibility may remain in abeyance for a long time in states of profound shock and coma". He also states "it must also be remembered that the process of digestion in normal healthy persons may continue for a time after death". The learned Judges reminded themselves of the imponderables pointed out by Modi which makes the ''digestive'' testimony inconclusive and, therefore, insufficient to contradict positive evidence, if any, about the time of death. To impute exactitude to a medical statement oblivious to the variables noticed by experts and changes in dietary habits is to be unfair to the science. We are not prepared to run the judicial risk of staking the whole verdict on nebulous medical observations. Given so according to P.W. 5 deceased took tea some time after 12.30 p.m. when they started for Bibi. At that time the possibility of his having had something to eat is not ruled out. If so, the medical evidence as to the time of death will not be inconsistent with the postmortem findings."

In Addition to the above he has also referred the following cases.

(1) Jitender Kumar Vs. State of Hariyana , (2012) 6 SCC 204. From para 44 to 62 the Hon''ble Apex Court has dealt with this aspect of appreciation of evidence. For the sake of brevity we would only reproduce para 61 of the report which contains gist of the opinion expressed by the Hon''ble Apex Court. Para 61 reads as under:

In view of the above medical references, the view expressed in Modi''s book (supra paras 55 and 57) and the principles stated in the judgments of this Court, it can safely be predicated that determination of the time of death solely with reference to the stomach contents is not a very certain and determinative factor. It is one of the relevant considerations. The medical evidence has to be examined in light of the entire evidence produced by the parties. It is certainly a relevant factor and can be used as a significant tool by the court for coming to the conclusion as to the time of death of the deceased but other factors and circumstances cannot be ignored. The court should examine the collective or cumulative effect of the prosecution evidence along with the medical evidence to arrive at the correct conclusion."

After giving our anxious consideration to the factual situation and legal position mentioned as above, we think that being of rural background we cannot take it for granted it was actually 1-1/2 hours before the deceased ate paratha. Further there is a possibility that after death digestion process would have continued. When there are two substantial reasons not to treat the opinion of the doctor final, we would be placing reliance on it only if there are surrounding circumstances to lend credence to the opinion of the doctor on this point. At present we cannot discard testimony of Rama Kant P.W. 1 on this score.

The 4th ground of attack is that from the place of occurrence blood stained earth could not be taken because no blood stained earth was found. The investigating officer Sri R.S. Singh P.W. 5 has himself stated in his examination-in-chief that he did not find any blood stains on the scene of occurrence because the accused had dug the blood stained earth and threw it. This fact is also stated by Prem Nath P.W. 3. During cross examination he was not cross examined on this point. Even he was not suggested that he did not see anyone digging earth at the scene of occurrence. Non finding of blood stains has been explained satisfactorily by the prosecution and their absence does not adversely affect and make the deposition of the witness doubtful.

In view of the above, we find no fault with the learned trial Judge that Rama Kant P.W. 1 is a trustworthy witness. His presence cannot be doubted upon and safely reliance can be placed on his testimony.

Veracity of testimony of Ram Naresh P.W. 2 has been questioned on the ground that in the site plan his location at the time of occurrence has not been shown. This argument is misconceived. In the site plan Ext. Ka-18 at place mark as ''E'' his presence at the spot has been shown. His statement was recorded on the day FIR was lodged. He is an independent witness. During cross examination his testimony remained unshaken. His testimony inspire our confidence. He is a trustworthy witness.

The third eye witness is Prem Nath P.W. 3. According to the appellants he is a chance witness. In his examination he has given reason for his presence near the field of Ram Pyari where deceased was done to death by the appellant. According to him he was going to dig his sugarcane field. Though his field has not been shown in the site plan but in the cross examination he has not been suggested that he has no field near by the field of Ram Pyari. For this reason we are not inclined to treat him as a chance witness. His presence at the spot is natural and probable. He has every opportunity to see the occurrence. He has given vivid description of the incident. During cross examination nothing could be extracted which might diminish value of his testimony. We also find him to be a reliable witness.

On behalf of the appellants two other arguments have been submitted one to discard the evidence of recovery and the other is consideration of defence evidence. The recovery has been made on the basis of information furnished by mukhabir from another village. Therefore, evidence of recovery is not a substantive piece of evidence. Though it has been asserted by Ram Sakal Singh P.W. 5. In view of trustworthy eye witness account we don''t think evidence of recovery matters much here.

We have gone through the cross examination of the witness on this point his evidence is corroborated by recovery memo Ext. Ka-20 we are not much impressed with the objection raised by the appellants in this regard.

The case of the defence is that deceased had criminal antecedents. He was murdered by his enemies. To establish his criminal antecedent S.I. Ram Saran Singh D.W. 1 has been examined on behalf of the defence but from his evidence only registration of one criminal case under section 324 IPC is established. In absence of criminal history the case of defence on this score is not proved.

No other argument has been raised on behalf of the appellants. The grounds taken in the appeal and arguments advanced in support thereof are not substantiated from the record.

Findings recorded by the learned trial Judge are based on proper appreciation of evidence in a legal fashion. We find no infirmity either legal or factual in these findings. The impugned judgment and orders require no interference by this Court. While affirming the conviction and sentences of the appellant we conclude that appeal is without substance and deserves to be dismissed. The appeal is dismissed.

Appellants No. 1 to 4, namely, Uma Nath, Ram Rasayan, Ishwar Saran and Prem Narain alias Goge are on bail. They are directed to surrender their bail before the Sessions Judge, Gonda within seven days from today who shall take them into custody and send them to jail to serve out their sentences, failing their surrender within the stipulated time, the Sessions Judge, Gonda is directed to take appropriate steps to procure the attendance of the surviving appellants and send them to jail to serve their sentences.

Office is directed to certify this order to the court concerned forthwith and send back the lower court record.