Research › Search › Judgment

Allahabad High Court · body

2009 DIGILAW 2867 (ALL)

Kalua @ Kallu v. State Of U. P.

2009-08-18

AMAR SARAN, DASU RAM AZAD

body2009
JUDGMENT: Amar Saran, Dasu Ram Azad, JJ. Heard Shri R.K. Khanna, learned counsel appearing for the appellant and learned Additional Government Advocate representing the State and also perused the judgement and trial court record. We have also considered the written arguments filed by the counsel for the appellant. A prayer for bail has been made on behalf of the accused-appellant Kalua alias Kallu in this criminal appeal. According to the prosecution case on 3.10.2008 at about 8.00 a.m., appellant Kalua alias Kallu along with co-accused Deo Phal Yadav came to the shop of the deceased and asked for some article from the deceased without paying its price. The deceased refused to hand over the demanded articles without getting payment for it. This annoyed the appellant and on 4.10.2004 at about 6.30 a.m., when the deceased had gone to attend the call of nature, the appellant Kalua alias Kallu and co-accused Deo Phal, who were armed with Tamanchas fired at and murdered the deceased Amar Nath. A first information report with regard to the said incident has been lodged promptly on the same day by Ram Bahori Sahu, P.W. 1, the real brother of the deceased. 2. The main contention raised by the learned counsel for the appellant was that the medical evidence does not corroborate the prosecution case. The incident in question is said to have taken place on 4.10.2004 at 6.30 a.m.. The post-mortem was conducted on the body of the deceased at 3.50 p.m. on the same day, i.e. after seven hours of the alleged incident. P.W. 3, Dr. Mukesh Kumar, who conducted the post-mortem examination found that rigor mortis had passed off from the neck and was passing out from the upper limb and was present in the lower limb. Learned counsel for the appellant submits that this could imply that the deceased had died at least 24 hours earlier. He relies on some lines of Modi wherein it is mentioned that rigor mortis sets in 1-2 hour after death and is well develop from head to foot in about 12 hours. It is maintained for about 12 hours and then passes off in about 12 hours. 3. He relies on some lines of Modi wherein it is mentioned that rigor mortis sets in 1-2 hour after death and is well develop from head to foot in about 12 hours. It is maintained for about 12 hours and then passes off in about 12 hours. 3. In reply, it was pointed out by the learned AGA that in Modi, it is shown that the time of setting in or passing off of rigor mortis is not fixed and it varies from place to place, individual to individual and across different climates and several exceptional cases have been mentioned at page 432 of Modi Medical Jurisprudence and Toxicology, Twenty-third Edition. Allso sometimes confusion arises between whether rigor mortis was setting in or passing out as the same is decided by associated findings like marbling, right lower abdominal discolouration, tense or taut state of the abdomen, disappearance of rigor on face and eye muscles. In Ram Swaroop Vs. State of UP, 2000 SCC (Cri) 484, it has been pointed out that the doctor can never give an accurate opinion about the duration of the injuries. In Jai Karan Vs. State of UP, 2003 (12) SCC, 655, it was pointed out that the time of injury as per the ocular evidence should be given preference over the hypothetical medical opinion given by the doctor. 4. It was also argued by the learned counsel for the appellant that there was inconsistency in the version given by the two eyewitnesses . P.W. 1 Ram Bahori, the informant has stated that he reached the place of incident first and Maya Devi came later, but P.W. 2 Maya Devi has stated that she reached first and Ram Bahori came later. Learned AGA pointed out that on the basis of this minor discrepancy, which may have been the result of some confusion, the testimony of the two eyewitnesses could not be discarded. So far as the submission of the learned counsel for the appellant regarding the absence of independent witnesses is concerned, it was pointed out that independent witnesses are notoriously unwilling to give evidence in cases involving other parties as they do not want to get embroiled in the dispute. 5. It is also argued by the learned counsel for the appellant that as per the post-mortem report, there were gases and faecal matters in the large intestines and urinary bladder contained 10 ml urine. 5. It is also argued by the learned counsel for the appellant that as per the post-mortem report, there were gases and faecal matters in the large intestines and urinary bladder contained 10 ml urine. Learned AGA pointed out that evacuation is never complete and the deceased could have been suffering from constipation etc.,and this position could even arise after passing stool. Learned AGA has stated that the appellant has been given the main role. Having considered the submissions of the parties, without expressing any final opinion on the merits of the case, we are not inclined to grant bail to the appellant Kalua. His prayer for bail is refused. 6. However, the hearing of the appeal is expedited. Office is directed to prepare the paper book of this appeal preferably within a period of three months and list the appeal for hearing thereafter.