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

J U D G M E N T

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

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.  

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