Amar Saran and D.R.Azad, JJ. - (1.) HEARD Shri R. K. Khanna, learned counsel appearing for the appellant and learned Additional Government Advocate representing the State and also perused the judgment and trial court record. We have also considered the written arguments filed by the counsel for the appellant.
(2.) 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 a.m., appellant Kalua alias Kallu alongwith 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 handover 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. 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.
(3.) 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 developed from head to foot in about 12 hours. It is maintained for about 12 hours and then passes off in about 12 hours.;