Chhotey Lal vs State
2017 Latest Caselaw 3465 ALL

HIGH COURT OF JUDICATURE AT ALLAHABAD
 
 

A.F.R.
 

 
Reserved on 10.02.2017 
 
Delivered on 22.8.2017             
 

 

 
Case :- JAIL APPEAL No. - 5618 of 2007
 

 
Appellant :- Chhotey Lal
 
Respondent :- State
 
Counsel for Appellant :- From Jail,Rajesh Dutt Pandey[A.C.]
 
Counsel for Respondent :- A.G.A.,Rajeev Gupta A.G.A.
 

 
Hon'ble Shashi Kant Gupta,J.

Hon'ble Prabhat Chandra Tripathi,J

(Delivered by Hon'ble Prabhat Chandra Tripathi,J.)

1. We have heard Sri Rajesh Dutt Pandey, learned Amicus Curiae for the appellant and Sri Rajeev Gupta, learned A.G.A. for the State of U.P.-respondent.

2. This jail appeal has been preferred by the appellant Chhote Lal against the impugned judgement and order of the then learned Additional Sessions Judge(F.T.C.), Sonbhadra dated 16.08.2003 in Sessions Trial No.43 of 2002, arising out of case crime no.198 of 2001, under Section 302 I.P.C., Police Station Dudhi, District Sonbhadra, whereby the accused person-appellant Chhote Lal has been convicted under Section 302 I.P.C. and has been awarded sentence of life imprisonment and fine of Rs.1000/- (Rupees One Thousand).

3. The written F.I.R. in Hindi Vernacular is enumerated as below:-

"The applicant- Indra Kunwar Vaiga wife of Shambhoo Kahar, resident of village Saro Kalan, Police Station Dudhi, present address Rantola, Police Station Dudhi, District Sonbhadra moved a written First Information Report before the Incharge of the Police Outpost, Muirpur, District Sonbhadra on 25.11.2001 at 14:15 hours that on that day; date 25.11.2001 a dance programme was to be performed by natives of her village. Her husband was also present in 'Karma Dance' and Chhote Lal Vaiga son of Bhoolan Vaiga, resident of her village was also dancing under the influence of wine. Few days ago, her husband expressed doubt about her illicit relationship with Chhote Lal, but she had denied to this all. She had no relationship. Chhote Lal under the influence of wine brought muzzle loading gun from his house and was dancing wielding the gun. At that time, her husband was at his home and in the presence of natives of the village, Roop Chand son of Sahdev, Sher Singh son of Deewan Singh, Shiv Mangal son of Somaru and Manju wife of Shiv Mangal, Chhote Lal fired from the gun due to which bullet hit her husband and her husband died in the courtyard. Chhote Lal fled away from the scene. This incident is of 12 O' Clock in the day. She had given the information so the report may be lodged and proper action might be taken."

4. Upon written information of the informant, First Information Report was lodged in case crime no.198 of 2001, under Section 304 I.P.C., Police Outpost Muirpur, Police Station Dudhi, District Sonbhadra against the named accused person Chhote Lal Vaiga son of Bhoolan Vaiga, resident of village Rantola, Police Station Dudhi, District Sonbhadra.

5. The prosecution has produced the following documentary evidence:-

"(i) Written F.I.R. (Exhibit Ka-1), (ii) Site Plan (Exhibit Ka-2), (iii) Fard Memo of blood stained soil (Exhibit Ka-3), (iv) Inquest Report (Exhibit Ka-4), (v) Sample Seal (Exhibit Ka-5), (vi) Letter sent to Chief Medical Officer, District Sonbhadra (Exhibit Ka-6), (vii) Photo Nash (Exhibit Ka-7), (viii) Form-13 (Exhibit Ka-8), (ix) Fard recovery memo of gun (Exhibit Ka-9), (x) Site plan of recovery of weapon of offence the muzzle loading gun (Exhibit Ka-10), (xi) Charge-sheet in crime no.198 of 2001, under Section 304 I.P.C., Police Outpost Muirpur, District Sonbhadra (Exhibit Ka-11), (xii) Chik F.I.R. (Exhibit Ka-12), (xiii) Copy of General Diary No.14, dated 25.11.2001, time 14:15 hours, Police Outpost Muirpour, District Sonbhadra (Exhibit Ka-13), (xiv) Chik F.I.R. crime no.199 of 2001, under Section 25/27 Arms Act, Police Outpost Muirpur, Police Station Dudhi, District Sonbhadra (Exhibit Ka-14), (xv) Carbon copy of General Diary No.11 dated 26.11.2001, time 12:15 hours, Police Outpost Muirpur, Police Station Dudhi, District Sonbhadra (Exhibit Ka-15), (xvi) Post-mortem examination report of Shambhoo (Exhibit Ka-16), (xvii) Charge-sheet in crime no.199 of 2001, under Section 25/27 Arms Act, Police Station Dudhi, District Sonbhadra (Exhibit Ka-17), (xviii) Report of Forensic Science Laboratory, Uttar Pradesh, Mahanagar, Lucknow-226006 dated 31.12.2002 (Exhibit Ka-18), (xix) Report of Forensic Science Laboratory, Uttar Pradesh, Mahanagar, Lucknow-226006 dated 02.11.2002 (Exhibit Ka-19) and (xx) Prosecution sanction under Section 25 Arms Act (Exhibit Ka-20).

6. The prosecution has produced following oral evidence:-

"P.W.-1 Indra Kunwar, P.W.-2 Sub-Inspector, C.B. Singh Bisen, P.W.-3 Constable 287 Multan Singh, P.W.-4 Dr. U.P. Pandey and P.W.-5 Constable 285 Lalta Yadav."

7. Learned Amicus Curiae for the accused person-appellant has advanced his arguments on the following points:-

"(a) The prosecution has not produced any independent witness.

(b) Presence of the witness P.W.1 Indra Kunwar at the scene of occurrence is doubtful.

(c) The investigation is partisan, erroneous, baseless and site plan is a total mismatch.

(d) The informant was known to the present accused-appellant."

8. Witness-informant Indra Kunwar is wife of Shambhoo Kahar (deceased). She has deposed in her examination-in-chief that there was a 'Karma Dance' in front of door of Roop Chand on the day of incident. Her husband was also taking part in 'Karma Dance'. Chhote Lal and natives of village were also performing the 'Karma Dance'. At about 11 O' Clock in the day, she and her husband were also present on that place where dance was being performed. She and her husband came home at about 12 O' Clock. Accused person Chhote Lal was dancing wielding his gun. When she and her husband reached home, thereafter Roop Chand, Shiv Mangal and his wife Manju Devi came to her house to call them. Her husband told that she would not go at that place, then at that time, accused person Chhote Lal arrived with Muzzle loading gun. Chhote Lal fired at her husband with the gun. Fire hit her husband. When Chhote Lal fired at that time her husband was in the courtyard.

9. She had seen Chhote Lal when he fired. Shiv Mangal, his wife Manju Devi and Roop Chand had seen Chhote Lal firing. This incident of firing took place at 12 O' Clock in the day. The shot of fire hit her husband. After the injuries, he fell down and he died there. After the incident, she alongwith Roop Chand went to Police Outpost Muirpur to inform about the incident. She handed over written report at Police Outpost Muirpur. She managed to scribe this report by one unknown person at Muirpur Bazar. What she had told he wrote the same and read-over the report to her and after hearing the same, she put her thumb impression upon that. The witness proved the written application which was marked as Exhibit Ka-1. Before the incident, her husband had doubt that she had illicit relationship with Chhote Lal. Although, this was wrong. When her husband Shambhoo enquired from her about this, she denied to that. When Chhote Lal fired thereafter he was chased by Roop Chand and Shiv Mangal but he could not be apprehended and fled away. After handing over the report at Police Outpost Darogaji visited the place of occurrence and made writings about the corpse of her husband and sealed the corpse and sent it to Post Mortem House. She had shown the place of occurrence to Darogaji, who took her statement.

10. Despite lengthy cross-examination, nothing has been elicited to discredit and discard her testimony, which has remained unshattered and consistent. The testimony of this witness is relevant for the fact of prompt lodging of the First Information Report as revealed by the Chik First Information Report (Exhibit Ka-1) the date of incident has been mentioned as 25.11.2001 and time has been mentioned as 12:00 hours in the day;, whereas date and time of report are mentioned as 25.11.2001 and 14:15 hours, whereas distance of Police Outpost Muirpur, Police Station Dudhi, from the place of incident has been mentioned as village Rantola, distance 12 Kilometers North. The First Information Report has been lodged promptly. This will give vigour to the prosecution version.

11. The suggestion which was made to this witness near the end of the cross-examination at the later part of it proved insidious to the accused person-appellant.

12. Informant P.W.1 Indra Kunwar in her cross-examination has deposed as follows:-

**---------NksVs yky ds vkus ls igys :ipUnz] f'koeaxy o mldh iRuh eatw nsoh gekjs ?kj vk, FksA ge yksxksa dks [kkus ds fy, cqykus ds fy, vk;s Fks ;s yksx NksVs yky ds vkus ds 20 feuV igys vk;s FksA NksVs yky 'kksj epkrk ugh vk;k Fkk cfYd pqipki vk;k FkkA NksVs yky dks vkrs gq, ge yksxksa us ugha ns[kk FkkA ftl le; NksVs yky vk;k ml le; f'koeaxy] eatw o :ipUnz dejs esa cSBdj ckr dj jgs FksA NksVs yky lh/ks vk;k vkSj vkaxu esa vk x;kA vkaxu esa vk;k vkSj dqN cksyk ugha vkSj ogha ls Qk;j dj fn;kA tgkW ge yksx ckr dj jgs Fks mlh txg 'kEHkw dks xksyh yxh og fxj x;k vkSj og ej x;kA xksyh yxus okyh txg o 'kEHkw dks xksyh yxus okyh txg esa yxHkx 6&7 fQV dk Qklyk Fkk--------A**

13. In the case on hand, this prosecution witness has clinchingly demonstrated how the accused person arrived at a particular spot with deadly weapon like muzzle loading gun and had fired at the deceased.

14. Narration of entire incident by this witness P.W.1 Indra Kunwar is so graphic that it looks natural. It also shows that how confidently she was able to narrate the role of accused in commission of the offence. It is not possible to give description of an incident in such a vivid and picturesque manner unless she had actually seen such incident and why P.W.1 Indra Kunwar will depose against the appellant and falsely implicate him when there is no evidence to prove their previous animosity. Lastly, nothing could be brought-out to shake her testimony in cross-examination.

15. Following Rulings are important on the point of ''Related and Independent Witness'':-

"(i) Tarjinder Singh v. State of Haryana, AIR 1994 Supreme Court 503 (ii) Namdeo v. State of Maharashtra (2007) 14 Supreme Court Cases 150 (iii) Bathula Nagamalleswar Rao & Ors. v. State, Rep. by Public Prosecutor, AIR 2008 Supreme Court 3227 (iv) Ram Chander and Ors. v. State of Haryana, AIR 2017 Supreme Court 568".

16. It is clear that oral evidence of a close relative who is a natural witness cannot be characterized as an "Interested Witness".

17. This is a case of direct evidence whereas accused person was named in the First Information Report.

18. We are of the view, mere fact that P.W. 1 Indra Kunwar is the wife of the deceased, due to this, she is interested witness being relative; is not a reason to discard her evidence, if her evidence is trustworthy. Mere mechanical rejection of her evidence would invariably lead to the failure of justice. (In the case of Ramesh Harijan Vs. State of Uttar Pradesh, (2012) 5 SCC 777:2012(3)ACR 2993 (SC).

19. P.W.2 Sub-Inspector C.B. Singh Bisen is the Investigating Officer of the case. In his examination-in-chief, he has deposed that Police Outpost Muirpur is the reporting Outpost and on 20.11.2001 he was posted as Incharge of the Police Outpost Muirpur, Police Station Dudhi. This case was registered in his presence at his Police Outpost. He has proved the Site Plan (Exhibit Ka-2), Fard Memo of blood stained soil (Exhibit Ka-3), Inquest Report (Exhibit Ka-4) and also proved the Sample Seal (Exhibit Ka-5), Letter sent to Chief Medical Officer, District Sonbhadra (Exhibit Ka-6), Photo Nash (Exhibit Ka-7), Form-13 (Exhibit Ka-8), Fard recovery memo of gun (Exhibit Ka-9), Site plan of recovery of weapon of offence the muzzle loading gun (Exhibit Ka-10), Charge-sheet in crime no.198 of 2001, under Section 304 I.P.C., Police Outpost Muirpur, District Sonbhadra (Exhibit Ka-11), Chik F.I.R. (Exhibit Ka-12), Copy of General Diary No.14, dated 25.11.2001, time 14:15 hours, Police Outpost Muirpour, District Sonbhadra (Exhibit Ka-13).

20. In his cross-examination, this witness has clearly explained that why he had not shown the place of hitting the bullet inside the room. This witness in his cross-examination has categorically stated that he has sent the recovered gun to Ballistic Expert for examination.

21. Report of Forensic Science Laboratory, Uttar Pradesh, Mahanagar, Lucknow-226006 dated 31.12.2002 (Exhibit Ka-18) mentions result of examination as blood stained soil marked as Q-1 and simple soil marked as S-1, appear to be the same.

22. Report of Forensic Science Laboratory, Uttar Pradesh, Mahanagar, Lucknow-226006 dated 02.11.2002 (Exhibit Ka-19) mentions result of examination as blood was found upon the earth alongwith blood stained rubble, earth alongwith plain rubble, pant, belt, shirt, baniyan, vest and bullet and human blood was found upon the pant, shirt, baniyan and vest.

23. P.W.5 Constable 285 Lalta Yadav is also a witness of recovery of muzzle loading gun alongwith the witness P.W.2 Sub-Inspector C.B. Singh Bisen. This witness has proved the recovery of weapon of offence the muzzle loading gun.

24. Obviously, these witnesses P.W.2 Sub-Inspector C.B. Singh Bisen and P.W. 5 Constable 285 Lalta Yadav are witnesses of recovery of muzzle loading gun under Section 27 The Indian Evidence Act, 1872.

25. In the present case, the declarant accused person was in the custody of the police and alleged information received from the accused person was made in consequence of his statement which resulted into the recovery of the muzzle loading gun at the pointing out of the accused person.

26. Only this component or a portion which was immediate cause of the recovery of the gun would be legal evidence and not the rest. This may therefore pro tanto (to that extent) permits the derivative use of custodial statements in the ordinary course of events.

27. P.W.3 Constable 287 Multan Singh is a witness of formal nature who has proved the Chik F.I.R. crime no.199 of 2001, under Section 25/27 Arms Act, Police Outpost Muirpur, Police Station Dudhi, District Sonbhadra (Exhibit Ka-14), Carbon copy of General Diary No.11 dated 26.11.2001, time 12:15 hours, Police Outpost Muirpur, Police Station Dudhi, District Sonbhadra (Exhibit Ka-15).

28. P.W. 4 Dr. U.P. Pandey, who conducted the post-mortem upon the dead body of Shambhoo on 26.11.2001, at 2:15 P.M. noted the following ante-mortem injuries:-

Injuries:-

"(1) Punctured wound 3 cm x 3.5 cm on lateral aspect of left arm 6 cm above elbow tattooing present all around wound Blockage stops present margins inverted direction gone to medial side of arm (entry wound) another wound 0.5 x 0.5 cm on lateral aspect 1 cm posterior to first wound.

(2) Exit wound 4.5 cm x 5 cm on medial aspect of arm 5 cm above elbow margins inverted humerus bone lower broken in pieces. Present muscle fascia torn.

(3) Punctured 1 cm x 1 cm on lateral chest wall left 14 cm below axilla margin inverted.

(4) Punctured wound 0.5 cm x 0.5 cm on lateral chest wall 12 cm below axilla & 2 cm distal to wound no.3 margin inverted.

(5) Punctured wound 0.5 cm x 0.5 cm on left lateral chest wall 13 cm below axilla 1 cm posterior to no.4 margin inverted.

Internal Examination:-

Fracture of 9th Rib wound inside pleura 1.5 x 1.5 cm

0.5 x 5 cm & 5 x 0.5 cm

Corresponding to injury nos. 3, 4 & 5.

Left lung tear in lower border of posterior end of left lung blood filled pleura cavity.

Heart:-Empty both chambers."

29. Tear in left diaphragm cavity clotted blood present in peritoneal cavity. Semi-digested food was present in the stomach. Spleen-Torn lateral surface of spleen. Metallic pieces found in it.

30. Duration of the said injuries, at the time of post-mortem had been about of date 25.11.2001 at 12 O' Clock in the day. This witness has opined the cause of death was syncope due to hemorrhage caused due to muzzle loading gun.

31. A very cryptic and abysmal cross-examination of two short sentences has been done with this witness. Nothing could be demonstrated to discredit and discard the testimony of this witness.

32. It becomes a case of conviction based on the testimony of a solitary witness i.e. wife of the decased, who had given graphic account of the attack on her husband. Where the statement of an eye-witness is found to be reliable, trustworthy and consistent with the course of events, the conviction can be based on her sole testimony.

33. The foregoing discussion yields the conclusion that the appellant had committed the offence of murder of Shambhoo Kahar the then aged about 45 years by entering inside the house of the deceased by shooting him from muzzle loading gun due to which Shambhoo Kahar (deceased) died instantaneously in his courtyard. The named accused Chhote Lal fled from the scene of occurrence.

34. In this case the evidence adduced was found sufficient to sustain the conviction and we find no good ground to take a different view from the one taken by the court below and also with the findings and views by giving our reasons mentioned supra. Onus probandi has been fairly discharged by the prosecution.

35. No other points have been raised before us by the learned counsel for the appellant.

36. In view of the foregoing discussions, the appeal is found to be devoid of any merit. The appeal thus fail and is accordingly dismissed on merits.

ORDER

(i) This appeal is dismissed on merits.

(ii) The accused appellant Chhote Lal is already in judicial custody in this case.

(iii) Let the entire original record of this case be sent back within ten days to the Court of the learned Sessions Judge, Civil and Sessions Court, District Sonbhadra for necessary compliance.

Before parting with this case, it may be noted that since it was a jail appeal, Mr. Rajesh Dutt Pandey was appointed as Amicus Curiae on 9.2.2010 to argue the appeal on behalf of the appellant.

The Registrar General of this Court is directed to ensure the payment of Rs.11500/-(Rupees eleven thousand and five hundred only) towards fee and Rs.1000/-(Rupees one thousand only) towards expenses within period of one month from today to Mr. Rajesh Dutt Pandey, Advocate.

Order Date :- 22.8.2017

S.Sharma