Non-reportable
IN THE SUPREME COURT OF INDIA
CRIMINAL APPELLATE JURISDICTION
CRIMINAL APPEAL NO.114 OF 2007
Lallan Chaubey ... Appellant
Versus
State of U.P. ... Respondent
JUDGMENT
Aftab Alam, J.
1. This appeal is directed against the judgment and order dated
October 6, 2006 passed by the Allahabad High Court in Government
Appeal No.1890/1991 and Criminal Revision No.1140/1991. The
High Court, setting aside the judgment of acquittal passed by the trial
court, convicted the appellant under Section 302 of the Penal Code
for committing the murder of one Raj Kumari and sentenced him to
undergo rigorous imprisonment for life.
2. The appellant along with his father Yamuna Chaubey and
brother Ram Vyas Chaubey was tried on charges under sections
302/307/34 of the Penal Code. According to the prosecution case,
the three accused, Yamuna Chaubey and his two sons and the
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members of the prosecution party were agnates with a history of
litigation behind them. There were disputes between the two sides
over the sehans (open courtyard) between their houses. Earlier, the
informant Shiv Dutt Chaubey, had filed a suit and obtained an ex
parte decree against Yamuna Chaubey who had filed a petition for
setting aside the ex parte decree. Yamuna Chaubey in his turn had
filed another suit claiming that Shiv Dutt Chaubey was living in his
house as a licensee and was refusing to vacate it despite the
termination of the licence. On May 31, 1987, Shiv Dutt Chaubey and
his family members were standing outside towards the east of their
house when his younger son Om Narain started sweeping the land
between the two sehans. The appellant probably taking it as
assertion of their right over the disputed land forbade him from
coming over the land as it belonged to them. When Om Narain
persisted with his sweeping, the appellant attempted to assault him
on which the informant along with his other son and three daughters
Shiv Kumari, Prem Kumari (PW.2) and Raj Kumari intervened. The
appellant then went inside his house and came back carrying his
licenced double barrel gun. He was accompanied with the other two
accused who were allegedly armed with spear and lathi, respectively.
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The father Yamuna Chaubey exhorted him to put an end to the daily
provocation from the other side. The appellant aimed his gun at the
informant and fired. At that moment one of the informant’s daughter,
namely, Raj Kumari tried to stop him with the result that the shot fired
by the appellant hit her on the right side of chest. The appellant fired
another shot aiming at Om Prakash but missed him. On `halla’ raised
by the members of the prosecution party, Ram Sakal Chaubey and
Jagat Narain (PW.3) arrived at the spot and they too witnessed the
occurrence. The accused then went back to their `Baithaka’ and Raj
Kumari was taken to the Ballia District Hospital where she was
declared dead. An FIR was lodged at 8.55 P.M. on the same day.
3. The prosecution in support of its case led ocular and medical
evidences but the trial court on a consideration of the materials
adduced before it acquitted all the three accused by the judgment
and order dated May 31, 1987 passed in ST No.198/1987.
4. Against the judgment and order passed by the trial court, both
the State and the informant filed an appeal and a revision
respectively. During the pendency of the Government Appeal, one of
the accused Yamuna Chaubey died and the appeal insofar as he was
concerned abated; it was finally, heard in regard to Lallan Chaubey
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and Ram Vyas Chaubey. The High Court held that there was no
evidence to show that Ram Vyas Chaubey shared the common
intention to commit murder and, therefore, acquitted him of the
charges but in regard to the appellant Lallan Chaubey, the High Court
allowed the appeal, set aside the judgment of the trial court and
convicted and sentenced him as noted above.
5. The High Court examined the evidence adduced by the
prosecution in great detail and considered the reasons assigned by
the trial court for recording the judgment of acquittal. The High Court
took the view, and, in our opinion, very rightly that the trial court had
rejected the consistent and otherwise highly credible evidences of the
eye witnesses for reasons that were wholly untenable and the
judgment of the trial court insofar as the appellant is concerned, had
resulted into miscarriage of justice.
6. The trial court had assigned mainly four reasons for not
accepting the prosecution case. It took the view that the FIR was
ante timed; the place where the occurrence took place was not
established; there was inconsistency between the ocular evidence
and the medical evidence and finally no independent witness was
examined on behalf of the prosecution.
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7. The trial court reasoned that the FIR was ante timed because it
was shown to have been recorded at 8.55 P.M. on the date of
occurrence. According to PW.8, the I.O., he reached the village on
the same day, late in the evening, at 10.30 P.M. and yet he prepared
the site plan only in the morning of June 1, 1987. It was, thus, the
delay in preparing the site plan that led the trial court to assume that
the FIR would not have been recorded the previous evening at
8.55 P.M. and it bore a wrong time of its recording. The High Court
rightly observed that the reason given by the trial court to condemn
the FIR as ante timed was wholly fanciful and unreasonable. There
may be any number of reasons for the I.O. not to prepare the site
plan of the place of occurrence in the night but wait till the morning
and, to hold that the FIR was ante timed, on that basis alone was
highly unreasonable.
8. Coming then to the identification of the place of occurrence, the
trial court placed great reliance on the note sent by the doctor at the
Ballia District Hospital to the police informing about the arrival of Raj
Kumari there with gun shot injury. In this note (exhibit Ka-7) she was
described as wife of Chandra Prakash Pathak and it was stated that
she was brought to the hospital by one Mahanth Pathak son of Gopal
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Pathak, resident of village Nagwa. In exhibit Ka-7 there was no
reference of her as the daughter of Shiv Dutt Chaubey, resident of
village Akhtar, where according to the prosecution, the occurrence
took place. This was sufficient for the trial court to doubt the
prosecution case that the occurrence took place at the place and in
the manner as stated by the prosecution. The High Court pointed out
that the trial court completely overlooked the simple explanation
provided by the prosecution that shortly before the occurrence Raj
Kumari was married to Chandra Prakash Pathak of village Nagwa.
When the occurrence took place it was natural for them to send the
information to her in-laws at Nagwa which was situated nearby. From
there Mahanth Pathak a close relative of her husband accompanied
them to the hospital and it was he who met with the doctor and spoke
to him. The High Court is again right in holding that this could hardly
be a reason for the trial court to doubt the place of occurrence more
so as the I.O. has found human blood at that spot.
9. The High Court also discussed the other two reasons given by
the trial court for disbelieving the prosecution case and very
effectively showed that the reasons assigned by the trial court were
specious and unfounded. The High Court rightly took the view that
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the ocular evidence of the informant, his other daughter Prem Kumari
and Jagat Narain were quite credible and there was no reason not to
accept their testimony.
10. Mr. Anoop Kumar Srivastava, counsel for the appellant tried to
contend that the view taken by the trial court was a reasonable and
possible view and, therefore, the High Court was in error in interfering
with the judgment of acquittal. Mr. K.T.S. Tulsi, senior counsel who
came at the fag end of the hearing of the case confined his
submissions to some self perceived inconsistency between the ocular
evidence and the medical evidence. Mr. Tulsi laid great stress that
according to the ocular testimony at the time of firing the shot, the
appellant and Raj Kumari were not standing at the same level and
from there he tried to build up an argument that the direction of the
movement of the pellet inside the victim as found by the Doctor belied
the prosecution case. In support of his submission he relied upon
some decisions of this Court in which the presence of the eye
witnesses at the time of the occurrence was doubted and their
testimony was not accepted in light of the medical evidence. In the
facts of this case, we fail to see any inconsistency in the medical
evidence and the ocular evidence and, therefore, the decisions relied
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upon by Mr. Tulsi have no application to this case. It is to be noted
that in this case according to the medical evidence the shot had hit
the head of the humerus that got punctured and the signs of the
wound were medially towards inside and slightly towards below and it
was from the right to left. Once the pellets hit a hard substance
like the humerus bone, they can get deflected in any direction and on
that basis it cannot be said that there is any inconsistency between
the medical evidence and the ocular evidence. We are in agreement
with the High Court that the ocular evidence in this case is highly
consistent and leaves no room for any doubt about the commission of
the offence by the appellant.
11. We find no merit in this appeal. It is, accordingly, dismissed.
…………………….J.
(Aftab Alam)
…………………….J.
(R.M. Lodha)
New Delhi;
October 29, 2010.