LALLAN CHAUBEY Vs. STATE OF UP

JUDGEMENT

(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. 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 informants 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.