Chunni Lal vs State Of U.P

302 of the Indian Penal Code [for short `IPC'] and sentencing

him to life imprisonment.

1

2. The aforesaid Sessions Trial case was registered for an

offence punishable under Section 302 IPC for allegedly

committing murder by the present appellant Chunni Lal of

his uncle Heera Lal at about 8.00 p.m. on 07.05.1978 in

village Baramafi, Police Station Pahari, District Banda.

3. The First Information Report [for short `FIR'] was lodged by

Juggi Lal [PW-1] who is allegedly an eyewitness to the

occurrence and the same was lodged at 08.05.1978 at 6.30

a.m. The deceased Heera Lal was the uncle of the accused

Chunni Lal inasmuch as both Ramdeo and Heera Lal were

sons of Ram Ratan. Heera Lal was unmarried but was

keeping one Kainya alias Chandrakaliya as his mistress or

concubine for the last about 25-26 years preceding the

incident. She was earlier married to one Jagannath Kalar

but sometime prior to the incident Heera Lal performed

marriage with her and a document in that regard was

executed on 15.02.1978 before the Marriage Officer. In

view of the aforesaid position the appellant Chunni Lal who

was hoping to succeed to the estate of the deceased Heera

Lal thought that his hopes of succeeding to this estate

2 would be lost and, therefore, it is alleged that the accused

had committed the aforesaid offence by going to the

agricultural field of deceased Heera Lal when deceased was

processing the harvest of mustard crop in his field. It is

alleged that after going there the accused fired two rounds

of bullets from the DBBL gun of the deceased in the

presence of Juggi Lal [PW-1] and Ram Sakh [PW-2]. The

incident happened at 8.00 p.m. on 07.05.1978 and the FIR

was lodged on 08.05.1978 at 6.30 a.m. The investigating

officer who is the Sub-Inspector of the Police Station went to

the village at 7.15 p.m. for investigation. During the course

of investigation he took a DBBL gun and other material

exhibits into his custody and recorded the statements of the

witnesses and thereafter submitted a chargesheet against

the appellant herein.

4. During the trial seven witnesses were examined on behalf of

the prosecution whereas none was examined on behalf of

the defence. The appellant was also examined under Section

313 of the Code of Criminal Procedure and thereafter the

Second Additional Sessions Judge, Banda, who was the

3 trial Judge, passed a judgment and order of conviction

against the appellant finding him guilty of committing an

offence under Section 302 IPC. By a separate order dated

21.12.1981 the learned trial Court sentenced the appellant

to life imprisonment.

5. Being aggrieved by the said judgment and order the

appellant filed an appeal before the Allahabad High Court

which was heard by a Division Bench of the High Court.

The Division Bench of the High Court by its judgment and

order dated 10.02.2006 upheld the order of conviction and

sentence and dismissed the appeal filed by the appellant.

Appellant therefore filed the present appeal on which we

have heard the learned counsel appearing for the parties.

6. The learned counsel appearing for the appellant took up

several pleas during the course of his arguments in support

of his stand that the appellant is innocent. We propose to

deal with each of the submissions made by the counsel

appearing for the appellant.

4

7. The first submission which was made by the counsel

appearing for the appellant was with regard to the motive

for the crime alleged against the appellant. The appellant

contended through his counsel that there was absolutely no

motive for the appellant to commit the crime as he was a

natural heir being the nephew of the deceased as both PWs

1 & 2 are illegitimate sons of the deceased and therefore

there was a motive for the PWs 1 & 2 to implicate the

accused in the offence.

8. In the instant case it is established from the records that

PWs 1 & 2 were born out of the relationship between the

deceased and their mother Chandrakaliya who earlier was

kept as a mistress or concubine by the deceased Heera Lal

for about 25-26 years. PW-1 at the time of deposition was

20 years of age whereas PW-2 was aged about 25 years. It is

established from the aforesaid fact that both of them were

born out of the relationship between the deceased Heera Lal

and Chandrakaliya as their relationship started about 25-

26 years preceding the incident. It is also established from

the evidence adduced that about three months prior to the

5 incident Heera Lal performed marriage with the said lady

and a document was executed in that regard on 15.02.1978

before the Marriage Officer. It is to be noted that incident

took place occurred only a few months thereafter that is on

07.05.1978. On having found that his chance of inheriting

the estate of the deceased was practically lost due to the

aforesaid marriage, the accused might have thought of

taking revenge on his uncle for depriving him of his right to

inherit his estate and therefore immediately went to the

place of occurrence on the night of 07.05.1978 picked up

the DBBL gun, loaded the same and fired upon the

deceased twice.

9. This, in our estimation is the reason and motive for the

crime and not the one which was advanced by the counsel

appearing for the appellant, for by the time the incident had

taken place, the deceased had legalized his relationship and

married said Chandrakaliya thereby giving legal status to

PWs 1 & 2 as his sons. In that situation there was no

possibility at all of the appellant inheriting the property of

his uncle and therefore the plea taken by the appellant

6 regarding motive appears to be without any merit. Rather

on the other hand, we find a clear motive on the part of the

appellant- accused for committing the murder of his uncle.

10.In this regard we wish to refer to the decision of this Court

in the case of Raghubir Singh & Others v. State of Punjab

reported in [1996] 9 SCC 233 which is as follows: -

"7. ....................... The motives may be minor but nonetheless they did provide an occasion for attack on the deceased by the appellants. That apart, even in the absence of motive, the guilt of the culprits can be established in a given case if the other evidence on the record is trustworthy and the absence of proof of motive has never been considered as fatal to the prosecution case where the ocular evidence is found reliable..................... "

11. The same is also corroborated by the fact that after the

death of the deceased the family of the accused including the

accused himself took several steps to get the land of the

deceased transferred and mutated in their names instead of

PWs 1 & 2 and their brothers. Even in the cross-examination

of the prosecution witnesses examined in the present criminal

case of murder, an effort was being made to dislodge the claim

of PWs 1 & 2 to inherit the property of the deceased. Both PWs

1 & 2 have been extensively cross-examined in that regard but

7 their evidence in support of their claim of inheritance could

not be shaken. The submission of the appellant therefore

that there was no motive to kill his uncle cannot be accepted

in view of the aforesaid extensively discussed clear facts and

circumstance of the case.

12. The second submission which was advanced by the

counsel appearing for the appellant was that the prosecution

had examined only the interested witnesses who were closely

related to the deceased. It was contended by the appellant

that the only independent witness who was examined was PW

5, and PW5 having turned hostile, the conviction and sentence

passed against the appellant is required to be set aside and

quashed. It is no doubt true that PWs 1 & 2 are the sons of

the deceased and they are brothers. They have been examined

in the trial as the eye-witnesses to the occurrence. The

evidence adduced by PWs 1 & 2 also indicate that besides

them there was another witness namely Jagdeo Pradhan who

was also present at the place of occurrence when the incident

had occurred. It has also come in evidence that said Jagdeo

Pradhan who otherwise would have been an independent

8 witness died during the trial and before his evidence could be

recorded. Both PWs 1 & 2 were cross-examined at length by

the defence but not even a single question was put in such

cross-examination that said PWs 1 & 2 were not present at the

place of occurrence. They are natural witnesses as their

presence at the place of occurrence at the relevant time was

usual and expected.

13. Both PWs 1 & 2 have given a vivid account of the incident

and the manner in which the incident had occurred. It is

proved from the records that when there father was doing the

cleaning work of the mustard at about 8.00 p.m. on the fateful

day, accused Chunni Lal came there and immediately picked

up the DBBL gun belonging to the deceased, loaded both the

barrels with cartridge and fired twice at Heera Lal, as a

consequence of which, Heera Lal died. PW-2 has also given a

vivid description of the incident including the fact that when

he chased Chunni Lal and caught his leg after 6-7 feet he even

managed to snatch the gun from the hand of the accused. It

is also disclosed from evidence recorded that despite falling

down the accused stood up immediately and ran away with

9 the belt of cartridges towards the South. There was another

independent witness Sri Keshan [PW-5] who was present at

the time of the occurrence. He, however, turned hostile in the

trial during his examination-in-chief.

14. Having considered the evidence of PWs 1 & 2 who were

the eye-witnesses to the occurrence we are satisfied that they

were present at the place of occurrence in a usual and natural

manner when the incident had taken place and they had

actually seen the occurrence. The incident had happened at

8.00 p.m. in the night in the field of the deceased which was

not only an agricultural field but also a dacoit infested area

and therefore it is reasonable to assume that even the

deceased kept a gun with him with a belt of bullets in open for

security reasons. The accused knew that a gun is always kept

in the field and at the place of work, for he used to visit them

at the field occasionally and even at night. That was also the

reason why he did not carry any weapon with him, so as to

avoid a suspicion in the mind of the deceased.

15. The accused used the weapon of the deceased himself for

firing upon him. Two bullets were fired which resulted in two

10 injuries which are established from the medical evidence

available on record. The ocular evidence, therefore, fully

corroborates the medical evidence. In that view of the matter it

cannot be said that the evidence of PWs 1 & 2 should be

discarded as they are interested witnesses particularly when

their evidence adduced could not be shaken by the defence in

the cross-examination.

16. In Jayabalan Vs. U.T. of Pondicherry reported in 2010

(1) SCC 199, this Court while dealing with the evidence of the

interested witnesses held as under:-

".................We are of the considered view that in cases where the Court is called upon to deal with the evidence of the interested witnesses, the approach of the Court, while appreciating the evidence of such witnesses must not be pedantic. The Court must be cautious in appreciating and accepting the evidence given by the interested witnesses but the Court must not be suspicious of such evidence. The primary endeavour of the Court must be to look for consistency. The evidence of a witness cannot be ignored or thrown out solely because it comes from the mouth of a person who is closely related to the victim."

17. Another submission which was made by the counsel

appearing for the appellant was that there was a delay in both

lodging the FIR as also in initiating the investigation by the

11 police. It was submitted that although the incident had taken

place on 07.05.1978 at about 8.00 p.m., the FIR was lodged

on 08.05.1978 at 6.30 a.m. only whereas the investigation was

started by the police only in the evening.

18. On proper appreciation of the evidence we find that

although the incident had happened at 8.00 p.m. on

07.05.1978 PWs 1 & 2 have clearly stated that they did not

dare to go out of the place of occurrence due to fear. It has

also come in evidence that the entire area was dacoit infested

area and police station was also about eight kilometers away

from the place of occurrence and therefore it was quite

possible that PWs 1 & 2 who were the eye-witnesses and the

sons of the deceased thought it fit to travel out of the place of

occurrence at about 4.00 a.m. in the morning to lodge the FIR

which was accordingly lodged at the police station at 6.30 a.m.

Although it was stated in the evidence that the investigating

officer namely the Sub-Inspector was present at the police

station in the morning hours when the informant reached the

police station but it has also come in evidence that he was

required to go to the Court which was functioning from 6 a.m.

12 in the morning. Therefore the constable took the statement of

the informant and carried the records to the Court to apprise

about the case to the Sub-Inspector, the Investigating Officer.

The Investigating Officer had clearly stated in his deposition

that he came back from the Court at about 1'o clock. The

Court was located at quite a distance from the police station

and after going back to the police station and after doing the

needful he went to the village in the evening for carrying out

his investigation. It is, therefore, established that there is well

reasoned and proper explanation for the delay both in the

lodging of the FIR as also in starting of the investigation by the

Investigating Officer. In this regard we would like to refer to a

decision of this Court in the case of Silak Ram & Another v.

State of Karnataka reported in [2007] 10 SCC 464 relevant

portion of which is as follows: -

"12. .................Delay in lodging FIR by itself would not be sufficient to discard the prosecution version unless it is unexplained and such delay coupled with the likelihood of concoction of evidence. There is no hard-and-fast rule that delay in filing FIR in each and every case is fatal and on account of such delay the prosecution version should be discarded. The factum of delay requires the court to scrutinise the evidence

13 adduced with greater degree of care and caution.

In this case the eyewitnesses have given a vivid description of the events. The evidence of PW 11 as noted above, is cogent and consistent and the version given by this witness fits with medical evidence. ................"

The aforesaid delay which was caused due to reasonable

factual situation cannot destroy the prosecution case nor

creates any suspicion with regard to the prosecution case. It

also cannot be said under any circumstance and particularly

because of the aforesaid explanation available on record that

the FIR is ante-timed as submitted by the counsel appearing

for the appellant.

19. There is another very vital and important factor in this

case, which is the fact of the accused absconding immediately

after the occurrence. PWs 1 & 2 stated that immediately after

the accused opened fire on the deceased through the gun and

after PW-2 was able to snatch away the rifle from the accused

the accused got up and ran away from the place of occurrence

and thereafter he was not available either at the place of

occurrence or in the village. It is established from the evidence

of the Investigating Officer that on 20.05.1978 he received an

14 information that the accused surrendered in the Court of Chief

Judicial Magistrate. The said information received by him was

noted in the case diary. The fact that the accused ran away

from the place of occurrence and was not traceable thereafter

in the village and the fact that he surrendered only on

20.05.1978 although the incident had occurred on 07.05.1978

clearly indicate that the appellant was guilty of the offence

alleged against him.

20. All the aforesaid discussions and facts, therefore, lead to

one and the only conclusion that the appellant is guilty of the

offence alleged against him.

21. In our considered opinion, the accused has been rightly

convicted of the offence under Section 302 IPC. This appeal,

therefore, has no merit and is dismissed accordingly.

.......................................J. [Dr. Mukundakam Sharma]

.......................................J. [H.L. Dattu]

15 New Delhi July 5, 2010.

16