Kallu vs The State Of Uttar Pradesh

[NON-REPORTABLE]

IN THE SUPREME COURT OF INDIA

CRIMINAL APPELLATE JURISDICTION

Criminal Appeal No. 1446 of 2014

Kallu …Appellant

Versus

The State of Uttar Pradesh …Respondent

JUDGMENT

Rajesh Bindal, J.

1. The present appeal has been filed impugning the

judgment dated 31.8.2007 of the High Court of Judicature at

Allahabad in Criminal Appeal No. 2003/1982 vide which the

conviction and sentence of Malkhan, Kallu and Mata Din was

upheld.

2. The incident took place on 27.3.1982 at about 3.10

p.m. On account of murder of Durga, FIR was registered against

the aforesaid three accused. The Trial Court, vide judgment dated

6.8.1982 convicted them under Section 302 IPC and sentenced to Signature Not Verified Digitally signed by NIRMALA NEGI

undergo imprisonment for life. The judgment and order passed Date: 2023.05.15 17:34:16 IST Reason:

by the Trial Court was upheld by the High Court.

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3. The case of the prosecution is that the son of deceased

Malkhan, his grandson Kallu, along with one Mata Din committed

murder of Durga. Ram Prasad, Jaila and deceased Durga were

sons of Bharose. As per the material available on record, the

reason of fight is property dispute. As per the prosecution, on

27.3.1982, Mullu PW-1, Phoola PW-2, and Durga at about 6-7 a.m.,

had gone to Kawar Haar to cut the crops. They worked in the field

till around 11 a.m.-12 p.m.. At around noon, Malkhan, Kallu and

Mata Din, accused persons, came there armed with axe and sickle

and started cutting crops. On an objection raised by Durga to

their cutting the crops, Malkhan struck a blow on his neck by his

axe. When Durga fell down, all three accused persons started

inflicting blows to the deceased. As a result of the attack, he

died. (Post mortem report).

4. Learned counsel for the appellant submitted that there

are good reasons to falsely implicate the appellant as the dispute

pertains to the ancestral land of the deceased Durga. He has also

alleged that Mullu himself has committed murder to usurp entire

property. The property in question being ancestral, the appellant

being the grandson, was to devolve upon him. For this reason, on

a complaint made by Mullu, PW-1, the appellant has also been

convicted, otherwise he had no role to play.

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5. He further referred to the statement of Smt. Phoola,

PW-2, to submit that she was an interested witness. The accused

Malkhan & Kallu in the present case were landless labourers. PW-

2 was cousin sister of Mullu, PW-1, as well as Malkhan. She

wanted to settle in the village for which PW-1 and his father could

be helpful and not the accused party. He further submitted that in

a dispute related to a case of theft in which PW-2’s brother,

Jogeshwar, was involved, Malkhan had appeared as a witness

against Jogeshwar. She appeared as a witness in the case in hand

to settle the score. In view of the aforesaid discrepancies, the

conviction and sentence of the appellant cannot be sustained.

6. On the other hand, learned counsel for the State

submitted that it is a case in which brutal murder of Durga was

committed by none other than his son and grandson/appellant

along with Mata Din, on whose field Malkhan was working. The

root cause of the dispute was that the accused wanted to settle

the score for the reason that the deceased allegedly did not give

2 bigha land as agreed in the Panchayat. This is an eye-witness

account. In the presence of PW-1, son of the deceased, Malkhan

had given an axe blow on the neck of deceased who fell on

ground and thereafter all the three accused beheaded the

deceased Durga and severed head was thrown by them away

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from the body. Thereafter they fled towards Chatela jungle. PW-

1 withstood the cross-examination. PW-2, Phoola was also an eye

witness to the offence. She had also withstood her stand in cross-

examination.

7. Heard learned counsel for the parties and perused the

paper book.

8. The ground raised by the appellant to challenge his

conviction is that he has right in the ancestral property. His

argument is that on account of this fact, he has been falsely

implicated in this case. However, the material which has come on

record suggests that the appellant along with his father Malkhan,

were living away from the family for the last 11-12 years. It is

their admitted case that Malkhan was ploughing the fields of

other co-accused Mata Din as they had been ousted from the

family. The motive of crime was clearly established. It was that

the deceased Durga had not given any share in his property to

the appellant and his father Malkhan. The statement made by

Mullu, PW-1, son of the deceased, who is eye witness to the

offence, had withstood the test of cross-examination. It has come

in evidence that the deceased had fallen on ground after one blow

of axe by Malkhan but still the other accused collectively

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assaulted him. It is corroborated from the Post Mortem Report.

They even beheaded him and threw his severed head at a nearby

place. The manner in which murder of the deceased was

committed was gruesome. This shows their intention and criminal

bent of mind. It was a daylight murder with direct eye witness

account.

9. The argument that Mullu himself had committed

murder of the deceased to usurp the property is merely of

frustration. It has come in evidence that he was living with the

deceased whereas the accused party had a grudge that they had

been deprived of their share in the property.

10. Besides that the issue sought to be raised is that PW-2

was an interested witness, hence her statement should not be

relied upon. Informant Mullu is not only the son of the deceased

but also the real brother of Malkhan and the real uncle of

appellant, Kallu. PW-2 Phula is the cousin sister of both Mullu and

Malkhan. Therefore, the relationship of Mullu and Phula with the

deceased does not affect her credibility. Reference was sought to

be made of a case of theft against Jogeshwar, who is the brother

of Phula, PW-2. In her cross-examination, PW-2 was put a question

that the accused Malkhan had testified against her brother

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Jogeshwar. However, it was merely a question put during the

cross-examination of PW-2. There is no document placed on

record to substantiate the plea that there was any dispute in

which accused, Malkhan had appeared as a witness. PW-2, Phula

is also an eye-witness of the incident. She also corroborated what

was stated by PW-1. There was no variation in the statements

made by them.

11. In view of the aforesaid material on record, in our view,

no case is made for interference in the present appeal. There is

no error in the judgment of the High Court. The appeal is

accordingly dismissed. The appellant was released on bail by this

court vide order dated 11.7.2014. He should surrender before the

trial court within two weeks from today to undergo the remaining

period of his sentence.

_____________, J.

(Abhay S. Oka)

____________, J.

(Rajesh Bindal)

New Delhi May 15, 2023

// NR, SS //

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