# Ram Chandra & Anr. (In Jail) v. State of U.P

- **Citation:** (2019) 4 ILRA 438
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2019-08-30
- **Case number:** Criminal Appeal No. 1487 of 1984
- **Bench:** Vipin Sinha, Siddharth
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/ram-chandra-anr-in-jail-v-state-of-u-p-45000
- **Pages:** 13

## Headnote

A. Criminal Law - Indian Penal Code,
1860 - conviction - Section 302 IPC ,
Section 324 IPC (Voluntary causing hurt
by dangerous weapons or means) read
with Section 34 IPC (Acts done by
several
persons
in
furtherance
of
common intention ) - the time of death
of the deceased mentioned in the FIR
appears to be doubtful - Presence of
rigor mortis by itself cannot be decisive
of the time of death - prosecution failed
to discharge its burden regarding the
incident in dispute - it has failed to prove
the injury nos. 5, 6 and 7 on the body of
the deceased - held - the motive of
crime set up by the prosecution was not
convincing. (Para 41,42 & 43)

The incident in dispute is doubtful appears
convincing from the testimony of P.W.-1. - The
statement of P.W.-1 that he did not went to
the police station directly but he went to the
house of his uncle, and thereafter, he went to
lodge the FIR shows that the FIR was lodged
by the P.W.-1 after due deliberation with his
uncle - rigor mortis sets in and reaches the
'extremities' at the end and that it follows the
same
pattern
both
in
the
matter
of
appearance and disappearance - Presence of
rigor mortis by itself cannot be decisive of the
time of death - It is true that on the basis of
presence of rigor mortis, no opinion can be
given with mathematical precision regarding
the time of death - The process of appearance
and disappearance of rigor mortis may take
relatively shorter and longer time depending
on various factors like temperature, season,
etc., of the place of death. (Para 34, 36, 38,
39 & 40)

Held: - The prosecution has failed to establish
the alleged crime against the appellants
4 All. Ram Chandra & Anr. Vs. State of U.P.
439
beyond reasonable doubt -The appellants are
acquitted of the charges. (Para 44)

Criminal Appeal allowed. (E-7)

List of cases cited: -

1.Virendra @ Buddhu and another vs. State of
U.P., 2008 (15) SCALE 283

## Text

_Characters 0–39,940 of 43,888. This is a partial read: ask again with offset=39940 for what follows._

438 INDIAN LAW REPORTS ALLAHABAD SERIES
set aside. The sentence under section 147,
323/149 I.P.C. of convicted appellants
Rajwa, Shiva Narain, Babu Lal, and
Lalloo and sentence of accused Pragi Lal
for the offence under section 148,
323/149 I.P.C. is upheld. The sentence of
convicted
appellants
Rajwa,
Shiva
Narain, Babu Lal, Lalloo and Pragi Lal
under section 304 Part II I.P.C. is reduced
to seven years. The default sentence in
lieu of fine as awarded by the learned trial
court for the above offences will remain
undisturbed. As directed in the impugned
judgment, all the sentences shall run
concurrently and the period already
undergone by convicted appellant shall be
adjusted against the awarded sentence.

46. With the aforesaid modification,
this criminal appeal is finally disposed of.

47. The appellants Rajwa, Shiva
Narain, Babu Lal, Lalloo and Pragi Lal
to surrender before the concerned court
forthwith to be sent to jail to undergo the
sentence.

48. The office is directed to return
the lower court record to the concerned
court along with a certified copy of the
judgment for information and necessary
compliance.
----------
(2019)12 ILR A438

APPELLATE JURISDICTION
CRIMINAL SIDE
DATED: ALLAHABAD 30.08.2019

BEFORE
THE HON'BLE VIPIN SINHA, J.
THE HON'BLE SIDDHARTH, J.

Criminal Appeal No. 1487 of 1984

Ram Chandra & Anr. ...Appellants
 (In Jail)
Versus
State of U.P. ...Opposite Party

Counsel for the Appellants:
Sri A. Hajela, Sri Rahul Misra (A.C.), Sri
V.B.L. Srivastava, Sri V.K. Shukla

Counsel for the Opposite Party:
A.G.A.

A. Criminal Law - Indian Penal Code,
1860 - conviction - Section 302 IPC ,
Section 324 IPC (Voluntary causing hurt
by dangerous weapons or means) read
with Section 34 IPC (Acts done by
several
persons
in
furtherance
of
common intention ) - the time of death
of the deceased mentioned in the FIR
appears to be doubtful - Presence of
rigor mortis by itself cannot be decisive
of the time of death - prosecution failed
to discharge its burden regarding the
incident in dispute - it has failed to prove
the injury nos. 5, 6 and 7 on the body of
the deceased - held - the motive of
crime set up by the prosecution was not
convincing. (Para 41,42 & 43)

The incident in dispute is doubtful appears
convincing from the testimony of P.W.-1. - The
statement of P.W.-1 that he did not went to
the police station directly but he went to the
house of his uncle, and thereafter, he went to
lodge the FIR shows that the FIR was lodged
by the P.W.-1 after due deliberation with his
uncle - rigor mortis sets in and reaches the
'extremities' at the end and that it follows the
same
pattern
both
in
the
matter
of
appearance and disappearance - Presence of
rigor mortis by itself cannot be decisive of the
time of death - It is true that on the basis of
presence of rigor mortis, no opinion can be
given with mathematical precision regarding
the time of death - The process of appearance
and disappearance of rigor mortis may take
relatively shorter and longer time depending
on various factors like temperature, season,
etc., of the place of death. (Para 34, 36, 38,
39 & 40)

Held: - The prosecution has failed to establish
the alleged crime against the appellants
4 All. Ram Chandra & Anr. Vs. State of U.P.
439
beyond reasonable doubt -The appellants are
acquitted of the charges. (Para 44)

Criminal Appeal allowed. (E-7)

List of cases cited: -

1.Virendra @ Buddhu and another vs. State of
U.P., 2008 (15) SCALE 283

(Delivered by Hon'ble Siddharth, J.)

1. Heard Sri Rahul Misra, learned
Amicus curaie for the appellants and Sri
Rajesh Mishra, learned A.G.A. for the State.

2. This criminal appeal has been
preferred against the judgment and order
of conviction dated 30.04.1984 passed by
VIth Additional District & Sessions
Judge, Saharanpur in Sessions Trial No.
584 of 1982 (State vs. Sia Ram and two
others) convicting and sentencing the
appellants, namely, Ram Chander son of
Godhra Kisan and Jaduvir son of Jograj
Kisan. Appellant no. 1, Ram Chander, is
convicted and sentenced to undergo
imprisonment for life under Section 302
IPC. He is also convicted and sentenced
to undergo rigorous imprisonment for
three years under Section 324 IPC read
with Section 34 IPC. Appellant no. 2,
Jaduvir, is also convicted and sentenced
to undergo life imprisonment under
Section 302/34 IPC. He is also sentenced
to undergo rigorous imprisonment for
three years under Section 324 IPC. Both
the sentences have been directed to run
concurrently.

3. The prosecution case is that Ram
Kishore, informant, lodged the first
information report at Police station-
Jaitipur, on 11.03.1982 at 07:15 am
stating that his grandfather, Anokhe Lal,
had illicit relationship with Smt. Prema,
widow of Khushali. Khushali was elder
uncle (tau) of co-accused, Sia Ram. After
death of Khushali, Smt. Prema had been
living in his house and she transferred 20
bighas of land of her share to Anokhe Lal.
She died about 7 years back. Ever since
her death, co-accused, Sia Ram wanted to
get back the aforesaid land back but he
could not get possession of the same. Due
to the above motive yesterday i.e.,
10.03.1982, at about 3:00 pm, when the
informant was going along with his uncle,
Gendan Lal and Nanku, to village- Kota
on the eve of Holi, co-accused, Sia Ram,
armed with gun, his brother, Ram
Chander, armed with country made pistol
and Jaduvir, armed with kanta, came out
of the house of Sia Ram. When they
reached the door of Sia Ram he fired at
his uncle, Gendan Lal, with his gun.
When his uncle fell down, Jaduvir
attacked him on his legs with a kanta and
Ram Chander fired from his country made
pistol on his right ear. Sia Ram hit him
with the butt of the gun on his head also
and Gendan Lal died.

4. Inquest report and site plan were
prepared, blood stained earth was taken
from the spot and thereafter post mortem
report of the body of Gendan Lal was
conducted by Doctor Aslam Khan. After
due
investigation
charge-sheet
was
submitted against the appellants and coaccused, Sia Ram, who died during
pendency of trial.

5. Accused-appellant no. 1, Ram
Chander, was charged under Section 302 IPC
and 324 IPC read with Section 34 IPC.
Accused-appellant no. 2, Jaduvir, was charged
under Section 302/34 IPC and 324 IPC.

6. Prosecution examined, P.W.-1,
Ram Kishore, the informant; P.W.-2,
440 INDIAN LAW REPORTS ALLAHABAD SERIES
Nanku; P.W.3, S.I. Kali Shanker Tiwari,
Investigating Officer; P.W.-4, Dr. Mohd.
Aslam Kamal Khan, who conducted the
post-mortem of deceased Gendan Lal and
P.W.-5, Constable, Asif Husain, who
brought the sealed dead body of deceased
for post-mortem along with the papers.

7. P.W.-1, Ram Kishore, deposed that
deceased, Gendan Lal, was his uncle. Name
of his father was Kunwar Bahadur. Coaccused, Sia Ram, has died. Ram Chander, is
real brother of deceased co-accused, Sia Ram.
Accused-appellant no. 2, Jaduvir is real
nephew of Ram Chander. Khushali was uncle
of Ram Chander and Sia Ram. Smt. Prema
was widow of Khusali. His grandfather,
Anokhey Lal, has illicit relation with Smt.
Prema. After death of her husband, she began
to live with Anokhey Lal in his house. Smt.
Prema transferred her share of 20 bighas of
land in the name of Anokhey Lal. Smt. Prema
died about 8 years back. Co-accused, Sia
Ram, wanted to get back that land, which was
transferred by Smt. Prema. As Sia Ram could
not get possession over that land, hence
accuseds had enmity with them. About one
year, 10 months back at 3 pm, he alongwith
deceased, Gendan Lal and Nanku, were going
to village- Kota in connection with Holi
Milan. When they reached at the door of Sia
Ram, deceased co-accused, he was armed
with a country-made gun, Jaduvir had a kanta
and Ram Chander was armed with a pistol.
Sia Ram fired with the gun at his uncle,
Gendan Lal. Ram Chander fired with the
pistol and Jaduvir attacked him with the kanta.
Sia Ram attacked with the butt of the gun also
on the head of the deceased and due to injuries
inflicted his uncle died.

8. In his cross-examination P.W.-1
stated that his father were five brothers,
namely, Rajaram, Ramnath, Gendan Lal,
Ram Sewak and Kunwar Bahadur. His
father, Kunwar Bahadur, was murdered in
dacoity. Brother of accused, Sia Ram,
Hemraj, was murdered prior to the present
murder of Gendan Lal. In the murder trial
of Hemraj, he and his uncle Ram Sewak
are accuseds. The trial is still pending.
Wife of Ram Chandra is the witness and
mother of Jaduvir is also a witness in the
trial. He stated that his uncle, Ram Nath,
was murdered in Saraiyaganj. In the
aforesaid murder Ram Singh and Chote
were tried. In suggestion he denied that
the deceased, Gendan Lal, was tried in the
murder of Mahesh. He also denied
implication of deceased, Gendan Lal, in
dacoity in the house of Lallu Singh. He
also denied implication of deceased,
Gendan Lal, in the theft case at Sraiyaganj
before trial court. He further stated that he
wrote the application for lodging FIR in
his house where no one were present.
Raja Ram was near the dead body of
Gendan Lal and his uncle, Nanku, was
also there. All the other people were near
the dead body of the deceased but he was
in the house. He did not slept in the night
and started for police station at 4:00 - 4:30
a.m on foot. Police Station is 6 kos away.
First he went to village Padainiya where
his uncle (fufa), Pothi Ram resides, and
after taking him from his house and he
went to the police station. Jaitipur is too
kos away from Padainiya. He specifically
denied that the report was lodged on the
next day of the incident.

9. P.W.-2, Nanku, stated in his
statement that he is resident of village
Gauhaniya and deceased, Gendan Lal,
was his cousin (mausera bhai). At the
time of incident he was residing in village
Jhabra along with deceased. His murder
took place at 3:00 pm when he was going
to village Kota for meeting people on the
eve of holi from the passage passing
4 All. Ram Chandra & Anr. Vs. State of U.P.
441
through the house of Sia Ram. As soon as
they reached the gate of house of Sia Ram
the accuseds, Sia Ram, Ramchandra and
Jaduvir came out from their house. Sia
Ram had gun, Ram Chandra had a
country made pistol and Jaduvir was
having a kanta. Sia Ram stated that he
will let them enjoy the taste of cultivating
the land of his aunt today and thereafter
he threw a challenge. Gendan Lal, turned
back after raising his arms and then Sia
Ram fired at him which hit him below the
arm pit and he fell down. Ram Chandra
fired at his right ear and Jaduvir gave
blow of kanta on his right leg. Sia Ram
hit Gendan Lal on his head by the barrel
of the gun. He along with Ram Kishore
cried for help but no one came. He went
and saw Gendan Lal who had died. On
account of fear he and the informant did
not went anywhere. His brother, Raja
Ram was weak and therefore he was
living with him in his village.

10. In his cross-examination, P.W.-2
stated that he does not knows how much
land did Raja Ram had. He further stated
that Rajaram had about 60, 70 bighas of
land which was joint. There were two
other persons to work, apart from Raja
Ram. He has land of about 40-50 bighas
in village Gauhaniya. He admitted in
cross-examination that he was not doing
the ploughing, planting and harvesting of
the land of Raja Ram. He does not knows
how much land Raja Ram has in the
village. He admitted that his village is 1011 kos away and 1.5 miles are equal to
one kos. At the time of incident Gendan
Lal was 3-4 steps ahead to him. Sia Ram
fired at him immediately after coming out
of the gate. After firing Sia Ram did not
run away nor the informant, Ram Kishore
ran. Gendan Lal suffered injuries. Neither
the informant nor he suffered any injury.
Sia Ram did not attacked them. Deceased
fell down infront of the house of Ram
Bharose. He did not lifted him. Since he
was empty handed he did not made any
effort to defend him. He further stated that
he informed the investigating officer that
injuries of kanta was caused on the left
leg and right feet of the deceased.
Deceased fell in the middle of the
passage. After Gendan Lal fell the ladies
of his house came. Neither the informant
nor he had any talk with the ladies. He
and Raja Ram remained with the dead
body till it was lying there and it was only
after it was sealed and taken away by the
police that they left. He does not knows
Pothi Ram. He was not the witness of
inquest report. At the time of inquest Ram
Kishore
was
there.
He
does
not
remembers who were signatories of
inquest report. He denied that signature of
Ram Kishore was taken before him on the
inquest report. The dead body was sealed
at 12:00- 12:30 pm. After it was taken
away in bullock-cart he went alone. He
denied that Gendan Lal was involved in
any criminal case regarding theft, dacoity,
gangster, etc. He also denied any such
involvement
of
Ram
Kishore,
the
informant. He denied that he has not seen
the incident and is falsely deposing before
the court.

11. P.W.-3, Kali Shanker Tiwari,
deposed that on basis of report Ext. Ka-1,
head constable Bani Singh executed chick
which is Ext. Ka-2, copy of G.D. No. 7,
7:15 am dated 11.03.1982 executed by the
said constable is Ext. Ka-3. He took the
statements of the witnesses and reached
the place of occurrence. He took the dead
body of deceased, Gendan Lal, in his
possession, executed panchnama, Ext.
Ka-4, prepared photo of deed body,
chalan of dead body and specimen of seal
442 INDIAN LAW REPORTS ALLAHABAD SERIES
and letters to the C.M.O. and R.I. which
are Ext. Ka-5, Ka-6, Ka-7, Ka-8 and Ka9. He sealed the dead body and handed
over sealed dead body and relevant papers
for post-mortem to constable,
Asif
Husain, and village- Chaukidar Rahwari.
He prepared site plan, Ext. Ka-10. From
the place of occurrence, he took in
possession shoes of deceased and plain
earth and blood stained earth and prepared
the memos which are Ext. Ka-11 and Ka12. Shoes are Ext. 13. Blood stained earth
is Ext. 2 and plain earth is Ext. 3. After
investigation, he filed charge sheet Ext.
Ka-14.

12. Dr. Mohd. Aslam Kamal Khan,
P.W.-4, deposed that on 12.03.1982 at
4:30 pm he conducted the post-mortem of
Gendan Lal who was brought by
constable, Asif Husain and Chaukidar
Rahwari. Seal was intact. Dead body was
identified
by
the
above
mentioned
constable and Chaukidar. Duration of the
death of the deceased was about 2 days.
Rigor mortis had passed off from the
upper portion and was passing from lower
portion.

13. Ante-mortem injuries on the
dead
body
of
the
deceased
were
following:-

(1) Incised wound on the
dorsum of right foot 10cm x 1.5 cm x
bone deep.

(2) Incised wound of 3.5cm x 1
cm on left leg in the middle 1/5 of the leg.

(3) Gunshot wound of enterance
6 cm circular x chest cavity deep, margins
lacerated and inverted, on the right side of
the chest lower part 12 cm (sic) and
lateral to the right nipple at 8 o'clock
position.
Blackenning
and
tattooing
present around the wound.

(4) Gunshot wound of enterance
3 cm circular x brain cavity deep on the
right side of the skull just behind the right
ear. No blackenning and tattooing.

(5) Incised would 4 cm x 1 cm x
cranial cavity deep 5 cm about right ear.

(6) Incised wound 10 cm x 0.5
cm x cranial cavity deep on the top of
skull in sagettal place 9 cm above the
injury nos. 5 and 7.

(7) Wound 4 cm x 1 cm x
cranial cavity deep on the front of the
skull 6cm away from the bridge of the
nose. Bones fractured under the wounds.

14. On internal examination, he found
that stomach contained 100 grams food
particles, not recognizable. Gall bladder was
empty. In small intestines digested food was
found. According to him death was due to
shock and haemorrhage. He deposed that time
of death may be at about 3 pm. On 10.03.1982.
Dr. also deposed that injury nos. 3 and 4 are
possible by gun and pistol and injuries nos. 1, 2,
5, 6 and 7 are possible by kanta.

15. Accused, Ram Chander, deposed
under Section 313 Cr.P.C. that informant
killed his brother. At the time of incident,
informant, Ram Kishore and his uncle,
Ram Sewak, were accuseds in a case
regarding death of his brother, Hemraj,
due to which he has been falsely
implicated, so that he could not do pairavi
of that case.

16. Jaduvir, deposed under Section
313 Cr.P.C., that informant, Ram Kishore
and his uncle, Ram Sewak, killed his
uncle, Hemraj. He and his mother are
witnesses in that case. Therefore, he has
been falsely implicated in this case.

17. Accused did not produced any
oral evidence in defence.
4 All. Ram Chandra & Anr. Vs. State of U.P.
443

18. The accuseds filed copy of the
charge sheet in the Case Crime No. 95,
under Sections 302, 307/34 IPC, Police
Station- Jaitipur (State vs. Raja Ram, Sita
Ram and Hemraj) of the court of II-
Additional Sessions in Sessions Trial No.
30/1981 (State vs. Raja Ram and others)
under Sections 395 IPC, Police Station-
Jaitipur and judgment of the IInd
Additional Sessions Judge, Sri R.G.
Gupta, in Sessions Trial No. 30 of 1981,
copy of the charge sheet in Crime No. 101
under Sections- 148, 147, 149, 342, 364,
302, 20 IPC, Police Station- Jaitipur,
(State vs. Raja Ram and others).

19. This court vide order dated
13.08.2018 appointed Sri Rahul Mishra,
Advocate as Amicus Curaie to assist the
court on behalf of appellants since no one
was appearing to argue the appeal on
behalf of the appellants.

20. He has firstly submitted that the
appellants have been falsely implicated in
this case. Their presence on the scene of
occurrence is doubtful and not proved
from the evidence on record. The
testimony of P.W.-1 is not worth credence
since he has deposed before the court that
deceased, Gendan Lal, was done to death
before him and he made no effort to save
him. He made no effort of lifting him
from the spot with the help of Nanku,
P.W.-2. He did not even touched the
deceased to ascertain whether he is alive
or not. He has only stated that he raised
the alarm for help but no one came. It has
been stressed that the conduct of the
informant is not normal since as soon as
Gendan Lal fell he along with P.W.2
presumed that he has died and their
conduct shows that neither P.W.-1 nor
P.W.-2 were present on the spot. P.W.-2
has also admitted that where the deceased
fell he remained there and he did not
lifted him or tried to save him by taking
him to doctor.

21. In support of his argument,
learned Amicus Curaie has further stated
that there was prior enmity between the
family of the deceased and the accuseds.
P.W.-1
has
stated
in
his
crossexamination that his father were five
brothers, namely, Rajaram, Ramnath,
Gendan Lal, Ram Sewak and Kunwar
Bahadur. His father Kunwar Bahadur was
murdered in dacoity. Brother of coaccused, Sia R
7. am, Hemraj, was murdered prior to the
murder of Gendan Lal. In the murder trial
of Hemraj he and his uncle Ram Sewak
are accuseds. The trial is still pending.
Wife of Ram Chander is the witness and
mother of Jaduvir is also a witness in the
trial. He has further submitted that his
uncle, Ram Nath, was murdered in
Saraiyaganj. In the aforesaid murder Ram
Singh and Chote were tried. In suggestion
he denied that the deceased, Gendan Lal,
was tried in the murder of Mahesh. He
also denied implication of deceased,
Gendan Lal, in dacoity in the house of
Lallu Singh. He also denied implication
of deceased, Gendan Lal, in the theft case
at Sraiyaganj before trial court. The
accuseds filed the documentary evidence
regarding the criminal cases pending
against the family members of P.W.-1 but
the trial court has not considered the
documentary evidences filed by the
accuseds.

22. It has been submitted that the
deceased was murdered by unknown
person/persons in the night of 10.03.1982
and since there was a criminal trial
pending regarding the murder of brother
of Sia Ram, Hemraj. Wife of Hemraj and
444 INDIAN LAW REPORTS ALLAHABAD SERIES
mother of appellant, Jaduvir are witnesses
in the case and P.W.-1 was in the need of
defending himself and his uncle, Ram
Sewak, in the aforesaid trial thereafter he
falsely implicated the deceased, Sia Ram
and appellants, who are the brother and
nephew of Sia Ram respectively and by
the same relation brother and nephew of
deceased, Hemraj.

23. By implicating the appellants
and deceased Sia Ram in the murder of
Gendan Lal, the informant succeeded in
presurizing the appellants in the trial of
murder of Hemraj.

24. The second submissions made
by learned Amicus Curaie is that the FIR
was lodged showing incorrect time of
death of the deceased and therefore the
prosecution case has wrongly been
believed by the trial court. He has
elaborated that P.W.-1 and P.W.-2, both
have stated in their statements that the
murder of Gendan Lal took place at 3:00
pm on 10.03.1982. Both the witnesses
have stated that on account of fear they
did not went to the police station on the
same day to lodge the FIR. P.W.-1 has
stated that in the morning of 11.03.1982
he went to lodge the FIR at 4:00 to 4:30
am in the morning from his village by
foot. Police Station is about 6 kos from
his village. He had written the application
in the night. He did not went directly to
the police station- Jaitipur. He first went
to village Padiniya where his uncle (fufa),
Pothi Ram, resides and thereafter he went
to the police station along with his uncle,
Pothi Ram.

25. Learned Amicus Curaie has
pointed out to the post mortem report and
the statement of P.W.-4, Dr. Mohd,
Aslam, wherein it has been stated that at
the time of post mortem of the deceased
on 12.03.1982 at 4:30 pm. rigor mortis on
the upper part of the body of the deceased
had passed off, while in the lower part it
was passing off. He has submitted that if
the murder of the deceased took place at
3:00 pm on 10.03.1982 there was no
reason for the rigor mortis not to have
passed off completely over the body of
the deceased at the time of post-mortem
after more than 48 hours of the murder of
the deceased.

26. He has submitted that the trial
court has not examined this aspects while
dealing with the contentions of the
defence. He has further submitted that
P.W.-1 and P.W.-2 both have stated that
they did not went to lodge FIR on the date
of incident because of fear. However,
P.W.-1 has not stated how he went alone
to lodge the FIR at 4:00 to 4:30 am on
foot when the accuseds were absconding.
He has submitted that the explanation of
delay in lodging of the FIR was not
convincing and the court below has
wrongly accepted the same. The murder
of the deceased took place sometimes in
the night of 10.11.1982 and the first
information report was lodged next day at
07:15 am before the police station by
falsely implicating the appellants and Sia
Ram. The medical evidence does not
supports the time of death mentioned in
the FIR as 3:00 pm on 10.03.1982. He has
further pointed out that the FIR was
lodged after consultation with Pothi Ram,
uncle of P.W.-1. In his statement P.W.-1
has admitted that he first went to Pothi
Ram and after taking him along went to
lodge the F.I.R. at police station.

27. The third submissions made by
the learned Amicus Curaie is that the
prosecution case cannot be said to have
4 All. Ram Chandra & Anr. Vs. State of U.P.
445
been proved
keeping
in
view the
statement
of
the
doctor,
P.W.-4
wherefrom it is clear that there is no
explanation of injury nos. 5, 6 and 7
mentioned in the statement of the doctor.

28. From the statement of P.W.-1
and P.W.-2 it is clear that there was no
injury of kanta caused on the head, ear
and skull of the deceased. Injury nos. 5, 6
and 7 are such injuries which were not
alleged by the prosecution either in the
FIR or in the statements of the witnesses.
He has further pointed out that in the antimortem injuries mentioned by the trial
court the injury no. 7 has been mixed with
injury no. 6 when injury no. 7 is different
from injury no. 6. It is incised wound 4
cm x 1 cm cranial cavity deep, 6 cm away
from nose bridge. He has pointed out that
the prosecution was required to explain
the injuries noted above which has not
been explained. It casts doubt over the
prosecution case.

29. The final submission of the
learned Amicus Curaie is that the motive
of crime alleged is not convincing. The
disputed transfer of 20 bighas of land by
Smt. Prema, widow of Khushali, was
done by her in favour of Anokhe Lal
about 7 years back. Thereafter, no
litigation, civil or revenue, or even a petty
dispute ever took place between the
family of Sia Ram and the appellants.
Therefore, the motive of the crime set up
by the prosecution is not correct. No
evidence was led before the Court that
after the transfer of the aforesaid land by
Smt. Prema any dispute ever took place
between the two families. How all of a
sudden Sia Ram and the appellants caused
the murder of only Gendan Lal, when the
informant, Ram Kishore, who also
belonged to the family of Anokhey Lal
and was also beneficiary of the land of
Smt. Prema, was not harmed at all by Sia
Ram and the appellants. He has submitted
that the motive of crime set up by the
prosecution was false and had been
wrongly believed by the court below.

30. Learned A.G.A. has submitted
that the first submission of learned
Amicus Curaie is misconceived since
P.W.-1 was very much present on the
scene of occurrence and he has given
exact description of the incident as it
occurred. There were only 4 to 5 families
left in the village and therefore when he
raised the alarm no one came for his help.
The village was not well populated and
therefore no one could hear his cry for
help. He has further submitted that mere
non-causing of any injury to P.W.-1 and
P.W.-2 does not implies that they were
not present on the scene of occurrence.
The
motive
of
implication
of the
appellants only because of the mother of
appellant, Jaduvir and wife of Hemraj
being witness in the murder case of
Hemraj, cannot be said to be correct. The
reason for implication of the appellants
was the dispute regarding the land which
was given to the father of Gendan Lal by
elder aunt of Sia Ram and appellants and
Sia Ram were trying to get back the
possession of the same.

31.

Regarding
the
second
submissions made by learned Amicus
Curaie, learned A.G.A. has submitted that
the time of death of the deceased was not
incorrect. The first information report
disclosed the correct time of death of the
deceased, Gendan Lal, at 3:00 p.m. on
10.03.1982. Both the witnesses have
testified the aforesaid time of death of the
deceased and it cannot be disputed in
appeal when the trial court has also
446 INDIAN LAW REPORTS ALLAHABAD SERIES
accepted the same as correct. He has not
given any reply to the argument of the
learned Amicus Curaie that the rigor
mortis was passing on the lower part of
the body on 12.03.1982 at 4:30 p.m.,
when the post-mortem was conducted.

32. Regarding the third submissions
of the learned Amicus Curaie that there
was no explanation for injury nos. 5, 6
and 7 in the statements of P.W.-1 and
P.W.-2, the learned A.G.A. has also not
been able to give any cogent reply.

33. Regarding the final submission
of the learned Amicus Curaie, that Smt.
Prema, transferred 20 bighas of land in
favour of Anokhey Lal, father of the
deceased and therefore Sia Ram and
appellants were aggrieved and they killed
Gendan Lal and that the land in dispute
was not the motive of crime committed by
the appellants, the learned A.G.A. has
submitted that there was no other motive
of the crime except the land dispute
because Sia Ram and the appellants were
deprived of their 20 bighas of valuable
land on account of the execution of sale
deed by Smt. Prema in favour of Anokhey
Lal, father of the deceased, Gendan Lal,
therefore, they caused the murder of
Gendan Lal.

34.

After
hearing
the
rival
contentions, this court finds that the first
submission of the learned Amicus Curaie,
that the incident in dispute is doubtful
appears convincing from the testimony of
P.W.-1. It is clear that when he along with
the deceased, who was his real uncle,
were passing from the house of Sia Ram
and the appellants, they suddenly came
out armed with the alleged weapons and
all of them attacked only the deceased,
Gendan Lal. Not a scratch was caused to
P.W.-1, who was the real nephew of the
deceased. After Gendan Lal fell down,
P.W.-1 not even touched the deceased to
ascertain whether his life can be saved nor
he made any effort to lift him with the
help of P.W.-2, Nanku, for taking him to
any doctor. He simply presumed that
Gendan Lal is now dead. P.W.-2 has
stated in his statement that he along with
P.W.-1 remained with the dead body till it
was lifted by the police and taken for
post-mortem at about 12-12:30 p.m., but
P.W.-1 has deposed that he went to his
house soon after the murder of Gendan
Lal and remained there. Other members
of family were with the dead body. He did
not slept in the night and left for the
police station, after writing the application
in the night at around 4:00 to 4:30 p.m. on
11.03.1982. The statement of P.W.-1 that
he did not went to the police station
directly but he went to the house of his
uncle, Pothi Ram, and thereafter, he went
to lodge the FIR shows that the FIR was
lodged
by
the
P.W.-1
after
due
deliberation with Pothi Ram.

35. From the statement of P.W.-1 it
has also come on record that the deceased
had criminal history and was involved in
number of cases of theft, dacoity, etc.
Documentary evidence in this regard was
placed before the trial court by the
appellants but the trial court has not
adverted to the same nor has recorded any
finding for not considering the same. The
argument advanced that in the murder of
the brother of Sia Ram, Hemraj, Ram
Sewak, uncle of P.W.-1 and P.W-1
himself were accuseds therefore the
appellants were falsely implicated in
order to pressurize the witnesses in the
family of the appellants from deposing
against Ram Sewak in the trial appears to
have force. The FIR has been lodged after
4 All. Ram Chandra & Anr. Vs. State of U.P.
447
more than 12 hours of the incident and there
was sufficient time for planning with the
P.W.-1 to implicate the appellants and Sia
Ram. By implicating the appellants and Sia
Ram, P.W.-1 succeeded in pressurizing them
to depose favorably in the trial of Hemraj. He
got Sia Ram and the appellants falsely
implicated thus.

36. The second argument made by
learned Amicus Curaie has not been
answered
by
the
learned
A.G.A.,
however, a perusal of the statement of
P.W.-2 shows that the rigor mortis on the
dead body of the deceased had passed
from the upper portion of the body and
was passing off from the lower part.

37. In view of the controversy at the Bar
we have consulted, apart from Modi's Medical
Jurisprudence
and
Toxicology,
Taylor's
Principles
and
Practice
of
Medical
Jurisprudence and Jhala & Raju's Medical
Jurisprudence (by Dr. R. K. Jhala and V. B.
Raju). It would be useful to refer to the
opinion of the learned authors as follows.
Modi in his Medical Jurisprudence (21 st
Edition at page 171) writes, Rigor mortis first
appears in the involuntary muscles and then in
the voluntary muscles. In the voluntary
muscles rigor mortis follows a definite course.
It first occurs in the muscles of the eyelids,
next in the muscles of the back of the neck
and lower jaw, then in those of the front of the
neck, face, chest and upper extremities and
lastly extends downwards to the muscles of
the abdomen and lower extremities. Last to be
affected are the small muscles of the fingers
and toes. It passes off in the same sequence.

Taylor in his book (13th Edition
at page 143) under the caption 'The order
in which rigor appears' states :-

As a rule, cadaveric rigidity first
appears in the muscles of the face, neck
and trunk; it then takes place in the
muscles of the upper extremities and
lastly in the legs...In regard to its
disappearance the muscles of the lower
extremities will often be found rigid,
while those of the trunk and upper
extremities are again in a state of
relaxation. It appears later and lasts longer
in the lower extremities than in other parts
of the body.

In Jhala and Raju's Medical
Jurisprudence (6th Edition at pages 256257) it has been stated :-

Rigor mortis is due to rigidity of
the muscles. It appears both in the
voluntary as well as involuntary muscles,
its appearance and disappearance in
various muscles follows a pattern. It is
apparent first in the region of head, face,
neck, eyelids and lower jaw. It last shows
its appearance in the lower extremities.
Hence if rigor mortis is present in lower
extremities, it can safely be opined that it
is present all over...After the rigor mortis
has set in the whole body (as confirmed
from its presence in lower extremities) no
specific opinion is possible till the time it
starts disappearing i.e. after about 18
hours.

38. It would, thus, appear that all the
authorities on the subject are unanimous
in their opinion that rigor mortis sets in
and reaches the 'extremities'at the end and
that it follows the same pattern both in the
matter of appearance and disappearance.
Presence of rigor mortis by itself cannot
be decisive of the time of death. It is true
that on the basis of presence of rigor
mortis, no opinion can be given with
mathematical precision regarding the time
of death. At the same time, in view of the
undisputed position regarding the 'course'
of appearance and disappearance of rigor,
its presence only in the lower left of body
448 INDIAN LAW REPORTS ALLAHABAD SERIES
does provides a sound basis to find out the
probability
or
otherwise
of
the
prosecution case regarding time of death.
The
process
of
appearance
and
disappearance of rigor mortis may take
relatively
shorter
and
longer
time
depending
on
various
factors
like
temprature, season, etc., of the place of
death.

39. In the present case the time of
death of the deceased has been disputed
on the ground that at the time of postmortem of the dead body of the deceased
which took place on 12.03.1982 at 4:30
p.m., the rigor mortis was passing from
lower half of the body and therefore the
learned Amicus Curaie for the appellant
has submitted that the death of the
deceased had not taken place at 3:00 p.m
on 10.03.1982 but sometimes in the night
of 10/11-03-1982. Jhala & Raju in their
medical jurisprudence have held that rigor
mortis usually is absent after about 36
hours but the period may be longer in cold
whether and for other reasons. As per
Taylor the dead body becomes limp after
36 hours of death. As per Modi also the
rigor mortis passes off from dead body
after 36 hours of death. In the case of
Virendra @ Buddhu and another vs.
State of U.P., 2008 (15) SCALE 283, the
Apex Court doubted the prosecution case
where the rigor mortis was present in the
lower extremities at the time of post
mortem conducted after 30 hours when
death was alleged to have taken place
more than 48 hours of ago. The relevant
paragraph is as follows:-

"Moreover, the doctor who
conducted autopsy on the dead body on
06.10.1979 at 4.30 p.m., in the report has
mentioned that rigor mortis had passed
through upper extremities and was
present in lower extremities. It is
mentioned at page 125 of Modi's Medical
Jurisprudence and Toxicology, Edition
1977 that in general rigor mortis sets in 1
to 2 hours after death, is well developed
from head to foot in about 12 hours, is
maintained for about 12 hours and passes
off in about 12 hours. In the instant case
rigor mortis was present in lower
extremities at the time autopsy was
conducted on the dead body after 30
hours. As according to ocular testimony
deceased was murdered on 05.10.1979 at
about
10.00
a.m.
and
the
doctor
conducted autopsy on the dead body on
the next day at about 4.30 p.m. after 30
hours of death but rigor mortis was found
present in lower extremities. Had he died
on 04.10.1979 at about 10.00 p.m. or so
rigor mortis would have passed off from
the dead body completely at the time of
autopsy. Thus the ocular testimony that he
was murdered on 05.10.1979 at about
10.00 a.m. stands corroborated from the
medical evidence pin-pointing that rigor
mortis was present in lower extremities at
the time when the autopsy was conducted
on the dead body after 30 hours."

40. From the above consideration, it
is clear that the time of death mentioned
by the prosecution cannot be accepted as
correct. Jhala & Raju have held that as a
result of exposure and cold stiffening can
appear as rigor mortis. In the present case
the incident is of March in District
Saharanpur which is in northern India and
dead body is stated to be lying in open
field from 3 p.m on 10.03.1982 till 12:30
p.m on 11.03.1982. Thereafter, postmortem was conducted on 12.03.1982 at
4:30 p.m. In the month of March it not so
cold which may lead to further stiffening
to body beyond period of 36 hours.
Therefore, the contention raised on behalf
4 All. Ram Chandra & Anr. Vs. State of U.P.
449
of appellant is not without substance. It
appears that the death of Gendan Lal did
not took place at 3 p.m on 10.03.1982 but
sometimes in the night of 10/11-03-1982
and the prosecution has mentioned
incorrect time of death only to implicate
the appellants and deceased co-accused,
Sia Ram, with whom the informant had
prior enmity.

41. On the basis of the other
material on record the time of death of the
deceased mentioned in the FIR too
appears to be doubtful. The explanation
on the basis of fear in going to police
station soon after the incident and then
going alone to lodge the FIR by P.W.-1 at
4:00 - 4:30 a.m the next day is
contradictory. The prosecution case does
not inspires confidence on this account
too.

42. Regarding the third argument of
the learned Amicus Curaie that there is no
explanation for injury nos. 5, 6 and 7, it is
found from the injury report of the
deceased that no evidence was led by the
prosecution
regarding
the
aforesaid
injuries and P.W.-4, the doctor has stated
that such injuries cannot be caused by the
barrel of the gun. There is no explanation
on record and therefore this court has no
option but to accept the contention raised
on
behalf
of
the
appellants
that
prosecution has failed to discharge its
burden regarding the incident in dispute
and it has failed to prove the injury nos. 5,
6 and 7 on the body of the deceased.

43. Regarding the last submission
made on behalf of the learned Amicus
Curaie it is found that the motive of the
crime alleged by the prosecution has not
been successfully established. The dispute
regarding the transfer of land by Smt.
Prema in favour of Anokhey Lal, father of
the deceased and grandfather of P.W.-1,
was never raised during the period of 7
years prior to the incident in dispute and
all of sudden it would result in a selective
murder of only one person from the
family of Anokhey Lal without causing
any harm to the other person, P.W.-1,
cannot be accepted as correct foundation
of motive set up by the prosecution. There
is no evidence on record to prove that any
pre-planning was done by the appellants
or Sia Ram for causing the murder of
Gendan Lal on the eve of Holi and there
is also no material on record to show that
the motive of crime was evident from any
material or any conduct of the appellants
whatsoever. Therefore, it can be safely
held that the motive of crime set up by the
prosecution was not convincing.

44. After consideration of the entire
material on record and the judgment of
the trial court, we have come to the
conclusion that the prosecution has failed
to establish the alleged crime against the
appellants beyond reasonable doubt.