{"id":210437,"date":"2010-10-29T00:00:00","date_gmt":"2010-10-28T18:30:00","guid":{"rendered":"https:\/\/www.legalindia.com\/judgments\/lallan-chaubey-vs-state-of-u-p-on-29-october-2010"},"modified":"2019-01-05T22:29:19","modified_gmt":"2019-01-05T16:59:19","slug":"lallan-chaubey-vs-state-of-u-p-on-29-october-2010","status":"publish","type":"post","link":"https:\/\/www.legalindia.com\/judgments\/lallan-chaubey-vs-state-of-u-p-on-29-october-2010","title":{"rendered":"Lallan Chaubey vs State Of U.P on 29 October, 2010"},"content":{"rendered":"
Supreme Court of India<\/div>\n
Lallan Chaubey vs State Of U.P on 29 October, 2010<\/div>\n
Author: A Alam<\/div>\n
Bench: Aftab Alam, R.M. Lodha<\/div>\n
                                                                  Non-reportable\n                 IN THE SUPREME COURT OF INDIA\n\n                 CRIMINAL APPELLATE JURISDICTION\n\n                  CRIMINAL APPEAL NO.114 OF 2007\n\n\nLallan Chaubey                                       ... Appellant\n\n                               Versus\n\nState of U.P.                                        ... Respondent\n\n\n                          JUDGMENT\n<\/pre>\n
Aftab Alam, J.\n<\/p>\n
1.   This appeal is directed against the judgment and order dated<\/p>\n
October 6, 2006 passed by the Allahabad High Court in Government<\/p>\n
Appeal No.1890\/1991 and Criminal Revision No.1140\/1991.              The<\/p>\n
High Court, setting aside the judgment of acquittal passed by the trial<\/p>\n
court, convicted the appellant under Section 302 of the Penal Code<\/p>\n
for committing the murder of one Raj Kumari and sentenced him to<\/p>\n
undergo rigorous imprisonment for life.\n<\/p>\n
2.   The appellant along with his father Yamuna Chaubey and<\/p>\n
brother Ram Vyas Chaubey was tried on charges under sections<\/p>\n
302\/307\/34 of the Penal Code. According to the prosecution case,<\/p>\n
the three accused, Yamuna Chaubey and his two sons and the
\n                                                                   2<\/span><\/p>\n
members of the prosecution party were agnates with a history of<\/p>\n
litigation behind them. There were disputes between the two sides<\/p>\n
over the sehans (open courtyard) between their houses. Earlier, the<\/p>\n
informant Shiv Dutt Chaubey, had filed a suit and obtained an ex<\/p>\n
parte decree against Yamuna Chaubey who had filed a petition for<\/p>\n
setting aside the ex parte decree. Yamuna Chaubey in his turn had<\/p>\n
filed another suit claiming that Shiv Dutt Chaubey was living in his<\/p>\n
house as a licensee and was refusing to vacate it despite the<\/p>\n
termination of the licence. On May 31, 1987, Shiv Dutt Chaubey and<\/p>\n
his family members were standing outside towards the east of their<\/p>\n
house when his younger son Om Narain started sweeping the land<\/p>\n
between the two sehans.       The appellant probably taking it as<\/p>\n
assertion of their right over the disputed land forbade him from<\/p>\n
coming over the land as it belonged to them.     When Om Narain<\/p>\n
persisted with his sweeping, the appellant attempted to assault him<\/p>\n
on which the informant along with his other son and three daughters<\/p>\n
Shiv Kumari, Prem Kumari (PW.2) and Raj Kumari intervened. The<\/p>\n
appellant then went inside his house and came back carrying his<\/p>\n
licenced double barrel gun. He was accompanied with the other two<\/p>\n
accused who were allegedly armed with spear and lathi, respectively.
\n                                                                       3<\/span><\/p>\n
The father Yamuna Chaubey exhorted him to put an end to the daily<\/p>\n
provocation from the other side. The appellant aimed his gun at the<\/p>\n
informant and fired. At that moment one of the informant’s daughter,<\/p>\n
namely, Raj Kumari tried to stop him with the result that the shot fired<\/p>\n
by the appellant hit her on the right side of chest. The appellant fired<\/p>\n
another shot aiming at Om Prakash but missed him. On `halla’ raised<\/p>\n
by the members of the prosecution party, Ram Sakal Chaubey and<\/p>\n
Jagat Narain (PW.3) arrived at the spot and they too witnessed the<\/p>\n
occurrence. The accused then went back to their `Baithaka’ and Raj<\/p>\n
Kumari was taken to the Ballia District Hospital where she was<\/p>\n
declared dead. An FIR was lodged at 8.55 P.M. on the same day.<\/p>\n
3.    The prosecution in support of its case led ocular and medical<\/p>\n
evidences but the trial court on a consideration of the materials<\/p>\n
adduced before it acquitted all the three accused by the judgment<\/p>\n
and order dated May 31, 1987 passed in ST No.198\/1987.<\/p>\n
4.    Against the judgment and order passed by the trial court, both<\/p>\n
the State and the informant filed an appeal and a revision<\/p>\n
respectively. During the pendency of the Government Appeal, one of<\/p>\n
the accused Yamuna Chaubey died and the appeal insofar as he was<\/p>\n
concerned abated; it was finally, heard in regard to Lallan Chaubey
\n                                                                        4<\/span><\/p>\n
and Ram Vyas Chaubey. The High Court held that there was no<\/p>\n
evidence to show that Ram Vyas Chaubey shared the common<\/p>\n
intention to commit murder and, therefore, acquitted him of the<\/p>\n
charges but in regard to the appellant Lallan Chaubey, the High Court<\/p>\n
allowed the appeal, set aside the judgment of the trial court and<\/p>\n
convicted and sentenced him as noted above.\n<\/p>\n
5.    The High Court examined the evidence adduced by the<\/p>\n
prosecution in great detail and considered the reasons assigned by<\/p>\n
the trial court for recording the judgment of acquittal. The High Court<\/p>\n
took the view, and, in our opinion, very rightly that the trial court had<\/p>\n
rejected the consistent and otherwise highly credible evidences of the<\/p>\n
eye witnesses for reasons that were wholly untenable and the<\/p>\n
judgment of the trial court insofar as the appellant is concerned, had<\/p>\n
resulted into miscarriage of justice.\n<\/p>\n
6.    The trial court had assigned mainly four reasons for not<\/p>\n
accepting the prosecution case. It took the view that the FIR was<\/p>\n
ante timed; the place where the occurrence took place was not<\/p>\n
established; there was inconsistency between the ocular evidence<\/p>\n
and the medical evidence and finally no independent witness was<\/p>\n
examined on behalf of the prosecution.\n<\/p>\n
                                                                        5<\/span><\/p>\n
7.    The trial court reasoned that the FIR was ante timed because it<\/p>\n
was shown to have been recorded at 8.55 P.M. on the date of<\/p>\n
occurrence. According to PW.8, the I.O., he reached the village on<\/p>\n
the same day, late in the evening, at 10.30 P.M. and yet he prepared<\/p>\n
the site plan only in the morning of June 1, 1987. It was, thus, the<\/p>\n
delay in preparing the site plan that led the trial court to assume that<\/p>\n
the FIR would not have been recorded the previous evening at<\/p>\n
8.55 P.M. and it bore a wrong time of its recording.    The High Court<\/p>\n
rightly observed that the reason given by the trial court to condemn<\/p>\n
the FIR as ante timed was wholly fanciful and unreasonable. There<\/p>\n
may be any number of reasons for the I.O. not to prepare the site<\/p>\n
plan of the place of occurrence in the night but wait till the morning<\/p>\n
and, to hold that the FIR was ante timed, on that basis alone was<\/p>\n
highly unreasonable.\n<\/p>\n
8.    Coming then to the identification of the place of occurrence, the<\/p>\n
trial court placed great reliance on the note sent by the doctor at the<\/p>\n
Ballia District Hospital to the police informing about the arrival of Raj<\/p>\n
Kumari there with gun shot injury. In this note (exhibit Ka-7) she was<\/p>\n
described as wife of Chandra Prakash Pathak and it was stated that<\/p>\n
she was brought to the hospital by one Mahanth Pathak son of Gopal
\n                                                                      6<\/span><\/p>\n
Pathak, resident of village Nagwa.     In exhibit Ka-7 there was no<\/p>\n
reference of her as the daughter of Shiv Dutt Chaubey, resident of<\/p>\n
village Akhtar, where according to the prosecution, the occurrence<\/p>\n
took place.   This was sufficient for the trial court to doubt the<\/p>\n
prosecution case that the occurrence took place at the place and in<\/p>\n
the manner as stated by the prosecution. The High Court pointed out<\/p>\n
that the trial court completely overlooked the simple explanation<\/p>\n
provided by the prosecution that shortly before the occurrence Raj<\/p>\n
Kumari was married to Chandra Prakash Pathak of village Nagwa.<\/p>\n
When the occurrence took place it was natural for them to send the<\/p>\n
information to her in-laws at Nagwa which was situated nearby. From<\/p>\n
there Mahanth Pathak a close relative of her husband accompanied<\/p>\n
them to the hospital and it was he who met with the doctor and spoke<\/p>\n
to him. The High Court is again right in holding that this could hardly<\/p>\n
be a reason for the trial court to doubt the place of occurrence more<\/p>\n
so as the I.O. has found human blood at that spot.\n<\/p>\n
9.   The High Court also discussed the other two reasons given by<\/p>\n
the trial court for disbelieving the prosecution case and very<\/p>\n
effectively showed that the reasons assigned by the trial court were<\/p>\n
specious and unfounded. The High Court rightly took the view that
\n                                                                       7<\/span><\/p>\n
the ocular evidence of the informant, his other daughter Prem Kumari<\/p>\n
and Jagat Narain were quite credible and there was no reason not to<\/p>\n
accept their testimony.\n<\/p>\n
10.   Mr. Anoop Kumar Srivastava, counsel for the appellant tried to<\/p>\n
contend that the view taken by the trial court was a reasonable and<\/p>\n
possible view and, therefore, the High Court was in error in interfering<\/p>\n
with the judgment of acquittal. Mr. K.T.S. Tulsi, senior counsel who<\/p>\n
came at the fag end of the hearing of the case confined his<\/p>\n
submissions to some self perceived inconsistency between the ocular<\/p>\n
evidence and the medical evidence. Mr. Tulsi laid great stress that<\/p>\n
according to the ocular testimony at the time of firing the shot, the<\/p>\n
appellant and Raj Kumari were not standing at the same level and<\/p>\n
from there he tried to build up an argument that the direction of the<\/p>\n
movement of the pellet inside the victim as found by the Doctor belied<\/p>\n
the prosecution case. In support of his submission he relied upon<\/p>\n
some decisions of this Court in which the presence of the eye<\/p>\n
witnesses at the time of the occurrence was doubted and their<\/p>\n
testimony was not accepted in light of the medical evidence. In the<\/p>\n
facts of this case, we fail to see any inconsistency in the medical<\/p>\n
evidence and the ocular evidence and, therefore, the decisions relied
\n                                                                              8<\/span><\/p>\n
upon by Mr. Tulsi have no application to this case. It is to be noted<\/p>\n
that in this case according to the medical evidence the shot had hit<\/p>\n
the head of the humerus that got punctured and the signs of the<\/p>\n
wound were medially towards inside and slightly towards below and it<\/p>\n
was from the right to left.     Once the pellets hit a hard substance<\/p>\n
like the humerus bone, they can get deflected in any direction and on<\/p>\n
that basis it cannot be said that there is any inconsistency between<\/p>\n
the medical evidence and the ocular evidence. We are in agreement<\/p>\n
with the High Court that the ocular evidence in this case is highly<\/p>\n
consistent and leaves no room for any doubt about the commission of<\/p>\n
the offence by the appellant.\n<\/p>\n
11.   We find no merit in this appeal. It is, accordingly, dismissed.<\/p>\n
                                                …………………….J.\n<\/p>\n
                                                (Aftab Alam)<\/p>\n
                                                …………………….J.\n<\/p>\n
                                                (R.M. Lodha)
\nNew Delhi;\n<\/p>\n
October 29, 2010.<\/p>\n","protected":false},"excerpt":{"rendered":"
Supreme Court of India Lallan Chaubey vs State Of U.P on 29 October, 2010 Author: A Alam Bench: Aftab Alam, R.M. Lodha 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 […]<\/p>\n","protected":false},"author":1,"featured_media":0,"comment_status":"open","ping_status":"open","sticky":false,"template":"","format":"standard","meta":{"_lmt_disableupdate":"","_lmt_disable":"","_jetpack_memberships_contains_paid_content":false,"footnotes":""},"categories":[30],"tags":[],"class_list":["post-210437","post","type-post","status-publish","format-standard","hentry","category-supreme-court-of-india"],"yoast_head":"\nLallan Chaubey vs State Of U.P on 29 October, 2010 - Free Judgements of Supreme Court & High Court | Legal India<\/title>\n<meta name=\"robots\" content=\"index, follow, max-snippet:-1, max-image-preview:large, max-video-preview:-1\" \/>\n<link rel=\"canonical\" href=\"https:\/\/www.legalindia.com\/judgments\/lallan-chaubey-vs-state-of-u-p-on-29-october-2010\" \/>\n<meta property=\"og:locale\" content=\"en_US\" \/>\n<meta property=\"og:type\" content=\"article\" \/>\n<meta property=\"og:title\" content=\"Lallan Chaubey vs State Of U.P on 29 October, 2010 - 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