# The State of U.P v. Rai Singh & Ors

- **Citation:** (2023) 10 ILRA 383
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2023-09-26
- **Case number:** Government Appeal No. 131 of 1986
- **Bench:** Surya Prakash Kesarwani, Ms. Nand Prabha Shukla
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/the-state-of-u-p-v-rai-singh-ors-49337
- **Pages:** 13

## Headnote

Law-Criminal
Procedure
Code,1973-Section 378-Indian Penal Code,
1860-Sections 302/34, 120B-Challenge toacquittal-In the present case, there are direct
evidence/eye witness about the incident-As
per evidence of PW-2, the deceased would
have taken food about four hours before his
death-No inconsistency in the ocular evidence
and the medical evidence as to the time of
death of the deceased-PW-2 being the mother
of the deceased who was sitting outside the
house is a natural witness who has seen the
incident-accused opposite party nos 2 and 3
conspired, shared common intention by
catching hold of the deceased to enable the
accused
opposite
party
no.1
to
give
repeated blows of Gandsa-Thus, the Trial
court ignored the valuable and credible
evidence-Accused
held
guilty
of
committing
offence
under
section
302/34,120B. (Para 1 to 38)

The appeal is allowed. (E-6)

List of cases cited:

## Text

_Characters 0–39,943 of 42,692. This is a partial read: ask again with offset=39943 for what follows._

10 All. The State of U.P. Vs. Rai Singh & Ors.
383
and huge and bulky affidavits were
exchanged in between them. Therefore,
prayer to grant injunction, as requested by
Sri Srivastava, is hereby refused.

31. In view of the above discussion, the
appeal is allowed. The order impugned dated
10.10.2022 passed by the District Judge,
Varanasi is hereby set aside.

32. The matter is remanded to the trial
court for fresh consideration of the injunction
application in the light of factors enumerated in
paragraph no.24 of this judgment.

33. The parties are permitted to file
additional documents, if any, before the court
below within three weeks from the date of this
decision.

34. The trial court shall decide the
injunction application afresh after recording
findings on all the above noted aspects after
providing full opportunity of hearing to all the
parties, positively on or before 15.11.2023.

35. Allowed in aforesaid terms.
----------
(2023) 10 ILRA 383
APPELLATE JURISDICTION
CRIMINAL SIDE
DATED: ALLAHABAD 26.09.2023

BEFORE

THE HON'BLE SURYA PRAKASH KESARWANI,
J.
THE HON'BLE MS. NAND PRABHA SHUKLA, J.

Government Appeal No. 131 of 1986

The State of U.P. ...Appellant
Versus
Rai Singh & Ors. ...Respondents

Counsel for the Appellant:
A.G.A.

Counsel for the Respondents:
Pt. Maha Chandra, Sri S.K. Yadav

A.
Criminal
Law-Criminal
Procedure
Code,1973-Section 378-Indian Penal Code,
1860-Sections 302/34, 120B-Challenge toacquittal-In the present case, there are direct
evidence/eye witness about the incident-As
per evidence of PW-2, the deceased would
have taken food about four hours before his
death-No inconsistency in the ocular evidence
and the medical evidence as to the time of
death of the deceased-PW-2 being the mother
of the deceased who was sitting outside the
house is a natural witness who has seen the
incident-accused opposite party nos 2 and 3
conspired, shared common intention by
catching hold of the deceased to enable the
accused
opposite
party
no.1
to
give
repeated blows of Gandsa-Thus, the Trial
court ignored the valuable and credible
evidence-Accused
held
guilty
of
committing
offence
under
section
302/34,120B. (Para 1 to 38)

The appeal is allowed. (E-6)

List of cases cited:

1. Mahendra Singh & ors. Vs St. of M.P. (2022)
7 SCC 157

2. Khema @ Khem Chandra etc. Vs St. of U.P.
(2022) SCC OnLine SC 991

3. Baleshwar Mahto & anr.. Vs St. of Bih. & anr.
(2017) 3 SCC 152

4. Kamaljit Singh Vs St. of Punj. (2003) 12 SCC
155

5. Baleshwar Mahto & anr.. Vs St. of Bih. & anr.
(2017) 3 SCC 152

6. P. Venkaiah Vs St. of A.P. (1985) AIR SC
1715

7. Jitender Kumar Vs St. of Har.(2012) AIR SC
2488
384 INDIAN LAW REPORTS ALLAHABAD SERIES
8. Mookkiah & anr. Vs St. (2013) AIR SC 321

9. Akhtar Vs St. of U.K. (2009) 13 SCC 722

10. Masjit Tato Rawool Vs St. of Mah. (1971)
AIR SC 2119

11. Gopal Singh Vs St. of U.P. (1979) AIR SC
1932

12. Sheo Darshan Vs St. of U.P. (1971) AIR SC
1794

13. R. Prakash Vs St. of U.P. (1969) 1 SCC 48

14. Kananji Vs St. of U.P. (1975) AIR SC (CR)
662

15. Charan Singh Vs St. of Punj. (1975) SC 246

16. St. of U.P. Vs Krishna Gopal & anr. (1988) 4
SCC 302

(Delivered by Hon'ble Surya Prakash
Kesarwani, J.
&
Hon'ble Ms. Nand Prabha Shukla, J.)

1. 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 vs. 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
10 All. The State of U.P. Vs. Rai Singh & Ors.
385
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 hemorrhage 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. 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
386 INDIAN LAW REPORTS ALLAHABAD SERIES
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. 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 CW1. 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 accusedopposite parties deserve to be convicted.

Submission on behalf of accusedopposite 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. 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
10 All. The State of U.P. Vs. Rai Singh & Ors.
387
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 1011 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.

(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 vs.
State of M.P. (2022) 7 SCC 157 (paras 12,
13, 23 ) and in Khema @ Khem Chandra
etc. vs. 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. In view of our findings that
the evidence of eye witness, P.W.-1 and
P.W.-2 are fully reliable, the aforesaid
388 INDIAN LAW REPORTS ALLAHABAD SERIES
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 vs.
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 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:

''ररपोर्ा र्थाना पमर्याली

श्रीिान् सी०एि०ओ० िहोिय, एर्ा

श्रीिान् जी

मनवेिन है मक िृतक रणवीर s/o लाखन यािव,
R/o िलका नगला र्थाना पमर्याली, एर्ा सम्बमन्द्ित िु०अ०सिं०
62/1982अन्द्तगात िारा 302/120-बी भा०ििं०सिं०, र्थाना
पमर्याली की लाश वास्ते पोस्र्िार्ाि भेजी जा रही है।

पोस्र्िार्ाि करने की कृपा की जाए। िृतक कपड़े,
र्थाना हाजा को भेजने की कृपा करें।''

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)
10 All. The State of U.P. Vs. Rai Singh & Ors.
389
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
aforequoted 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 aforenoted 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. 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,
390 INDIAN LAW REPORTS ALLAHABAD SERIES
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. 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 antemortem 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 accusedopposite party no. 2-Ramveer, accusedopposite 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. Thus, the
10 All. The State of U.P. Vs. Rai Singh & Ors.
391
ocular evidence of P.W.-1, P.W.-2 and
C.W.-1 and medical evidence i.e. postmortem 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 vs.
State of Punjab, (2003) 12 SCC 155 para
(8) followed in Baleshwar Mahto and
Another vs. 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. 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 23 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,
392 INDIAN LAW REPORTS ALLAHABAD SERIES
Gopal Singh v. State of Uttar Pradesh,
AIR 1979 SC 1932 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. 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 postmortem 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
10 All. The State of U.P. Vs. Rai Singh & Ors.
393
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.
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 accusedopposite 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. In the case of State of U.P. vs.
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
394 INDIAN LAW REPORTS ALLAHABAD SERIES
aforegoing 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 aforestated, we
are of the firm view that the accusedopposite 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 accusedopposite 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 vs. Rai Singh and
others) (arising out of Case Crime No. 62
of 1983, Police Station Patiyali, DistrictEtah) 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. 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 accusedopposite 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
10 All. Sangeeta & Ors. Vs. State of U.P. & Ors.
395
lower court be returned to the trial court
forthwith.

44.