JUDGMENT M.C. Jain, J.
1. The accused-appellant Chunni Lal was tried before II Additional Sessions Judge, Banda in Sessions Trial No. 354 of 1980 for the offence punishable under Section 302 I.P.C. for allegedly committing murder of his uncle Heera Lal at about 8.00 P.M. on 7.5.1978 at the latter's Khalihan situated in Village Baramafi, Police Station Pahari, District Banda. The F.I.R. was lodged on 8.5.1978 at 6.30 A.M. by Juggi Lal PW 1 (eyewitness). The distance of the police station from the place of occurrence was about eight miles.
2. Broad essentials of the prosecution case were these: Ram Ratan-Brahman by caste, had two sons Ramdeo and Heera Lal (deceased). Ramdeo was alive at the time of the incident having two sons Chunni Lal (accused) and Jagdish. 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, though she had been married to one Jagannath Kalar of the same village Baramafi. A few years before the incident, Heera Lal, it was said, performed marriage also with the said lady and a document had been executed in this behalf on 15.2.1978 before the Marriage Officer. It was alleged that after the registration of the marriage of Heera Lal with the lady abovenamed through a document before the Marriage Officer, the accused-appellant Chunni Lal was chagrined as his hope of succeeding to his estate was lost. It was said to be the cause of the incident. Juggi Lal PW 1, Ram Sakh PW 2 and five other sons were said to have born out of the wedlock of Heera Lal and Kainya alias Chandrakaliya Ancestral land had been partitioned between Ramdeo and deceased Heera Lal each being in possession of 72½ bighas of land.
3. Khalihan of the deceased was situated at a distance of ½ furlong from the village abadi. On the fateful day and time, the deceased was processing the harvest of mustard crop in his Khalihan. The processing of separating chaff from the grain with the help of a fan was going on. Juggi Lal PW 1, his brother Ram Sakh PW 2 and their servant Sri Keshan PW 5 were engaged in such process, helping Heera Lal. A petromax was kept lighted. Heera Lal had kept his DBBL gun with belt of cartridges nearby. The accused-appellant Chunni Lal came their empty handed, picked up the DBBL gun of Heera Lal, took out two cartridges from the belt, filled the same in the DBBL gun and opened fire on Heera Lal. On receiving the first shot, Heera Lal fluttered and fell down. Chunni Lal opened second shot on him which also hit the deceased and he died at the spot. Chunni Lal took to his heels with gun and belt of cartridges to the southern side. Juggi Lal PW 1 and Ram Sakh PW 2 chased him. Ram Sakh felled Chunni Lal by catching his leg and snatched the gun from him. However, the accused managed to extricate himself and ran away with the belt of cartridges. Owing to night time, the informant could not go to the police station to lodge the F.I.R. which came to be lodged the following day as stated earlier. The incident was alleged to have been witnessed by Jagdeo Pradhan also. A case was registered. The investigation followed as usual. Rampati Misra PW 3 was the first Investigating Officer. The investigation was concluded by Raj Narain Shukla PW 4.
4. At the trial, the prosecution in all examined five witnesses. Out of them, Juggi Lal PW 1 (informant), Ram Sakh PW 2 and Sri Keshan PW 5-servant of Heera Lal were examined as eyewitnesses. Sri Keshan PW 5 turned hostile. Rampati Misra PW 3 and Raj Narain Shukla PW 4 were the Investigating Officers of the case as stated above. The formal proof of the post mortem report of the dead body of the deceased was dispensed with. Suffice it to say here that post mortem was conducted on 9.5.1978 on 11.20 A.M. The deceased was aged about 57 years and about 1½ day had passed since he died. Two gunshot wounds of entry including one on the chest were found on his person.
5. The defence was of denial. The accused-appellant claimed false implication. In his statement under Section 313 Cr.P.C., he stated that someone had murdered his uncle Heera Lal under the cover of night and he had been falsely implicated in the greed of his property.
6. The evidence of the prosecution commended itself to the trial judge who found him guilty for the murder of Heera Lal, passing the impugned judgment. The same has been been assailed through this appeal.
7. We have heard Sri G.S. Chaturvedi, learned senior advocate assisted by Sri Samit Gopal, counsel for the accused-appellant and learned A.G.A. Sri Amar Jeet Singh from the side of the State. We should point out that there was no challenge from the side of the accused as to the time, place and manner of the incident resulting in the death of the deceased.
8. Great stress came to be laid by the learned Counsel for the accused-appellant that he had no motive to commit the murder of his uncle which might have been committed by Juggi Lal PW 1 himself to disentitle him (accused) from succeeding to the estate of his uncle (deceased) as per Section 25 of the Hindu Succession Act by branding him as his murderer.
9. We should point out that motive is a treacherous and elusive ground. It is hidden in the mind of the perpetrator of the crime. Further, motive is immaterial in a case of direct evidence as the present one. Still, the aspect of motive raised by the counsel for the accused-appellant may be examined. It has been urged that the claim of Juggi Lal PW 1 of being the son of the deceased Heera Lal was apocryphal. Rather, it was exploded by the material on record that in his school leaving certificate (Transfer Certificate-Ext. Kha-5 dated 9.10.1978) of Jansewa Inter College Karvi, Banda, he was shown to be the son of Jagannath Prasad. Herein his date of birth was shown as 1.1.1962. Jagannath was the person with whom his mother Kaiya alias Chandrakalia had married. Ext. Kha-3 is the copy of the sale deed dated 6.7.1973 whereby certain land had been purchased in the name of Juggi Lal PW 1 (minor) shown as under the guardianship of his father-Jagannath. Ext. Ka-4 is the copy of the sale deed dated 7.5.1974 whereby another piece of land was purchased in the above fashion in favour of Munni Lal (minor)-brother of Juggi Lal, who, too, has been shown to be under the guardianship of his father Jagannath. Our attention has been invited to the statement of Juggi Lal PW 1 (in his cross-examination) that in 1973-1974 land had been purchased by Heera Lal (deceased) in his name and in the name of his brother Munni Lal. We have also been taken through this part of his statement that Heera Lal deceased had great affection for the accused. Learned Counsel for the accused-appellant reasoned that there being affectionate relations between the deceased and the accused, the latter could have no motive to commit the murder of his own uncle. Rather, Juggi Lal PW 1 himself might have committed his murder in the greed of property. He (deceased) being attached to his own kith and kin including the accused, had great loyalty for his own family and blood. It was for this reason, it has been submitted, that he did not transfer his own land in favour of Juggi Lal, his brothers or his mistress Kaiya alias Chandrakalia. The learned Counsel for the accused-appellant urged that by branding the accused to be the murderer of his own uncle, the ultimate game of Juggi Lal was to disinherit him from his estate under Section 25 of the Hindu Succession Act, with his own evil and covetous eye on his (deceased's) property.
10. The submission of the learned Counsel for the accused-appellant can not stand a close scrutiny. Fatherhood of Juggi Lal PW 1, his brothers and sisters is not in question as such. What is material is that Juggi Lal's mother Kaiya alias Chandakalia despite being married to one Jagannath had been kept by the deceased as his concubine or mistress for the last 25-26 years and he was rearing her as also Juggi Lal PW 1, his brothers and sisters as his own children. He himself had not married with anyone else. Instead, in recognition of real state of affairs about three months before the present incident, consequent upon making a declaration accepting the said Kaiya alias Chandrakalia to be his wife, he had been issued a certificate by the Marriage. Officer under Section 16 of Special Marriage Act, 1954 (Ext. K-a-21). It was there in the testimony of Juggi Lal PW 1 that the deceased had got opened a shop for him (Juggi Lal PW 1). His mother (Kaiya alias Chandrakalia) used to sit on the said shop. It was there in the house itself of Heera Lal. So, Heera Lal deceased was taking all the care for Kaiya alias Chandraklia, Juggi Lal PW 1 and Ram Sakh PW 2. For all practical purposes, he was treating them as his family. He was sincerely interested in their welfare and future as insueed by his conduct that he got opened a shop for Juggi Lal PW 1 and purchased land for him and his brother in 1973 and 1974. Not only this, in token of acceptance of his relationship with Kaiya alias Chandrakalia as his wife, he made a declaration before the Marriage Officer also a few months before the incident and obtained a certificate as referred to above.
11. The affection of the deceased for the accused was one sided affair. Truth of the matter was that the accused was storing venom and hatred for his uncle (deceased) because of his conduct for the last few years, bestowing benevolence on Kaiya alias Chandrakalia, Juggi Lal PW 1 and his brothers and sisters whom he was keeping and maintaining as his own family. The accused nurtured grudge against the deceased as because of his conduct over few years back qua Kaiya alias Chandrakalia, Juggi Lal PW 1, his brothers and sisters, he felt disappointed that his (deceased's) estate was slipping out of his hands. They being nearer to the deceased and receiving his benevolence in different ways, the chances of his (accused's) succeeding to his (deceased's) estate dampened and became bleak. The attending circumstances well indicate that he thought of liquidating the deceased anticipating his act of either transferring his property to Kaiya alias Chandrakalia/Juggi Lal PW 1/his other brothers/sisters during his lifetime or by executing a will. Really, it actuated him to commit the cold-blooded murder of his uncle Heera Lal.
12. A little discussion would show that the reasoning is wholly imaginary that Juggi Lal PW 1 would have murdered Heera Lal for the greed of his property. He or his brothers were not at all to be benefited by his elimination in this way. No doubt, a murderer is disqualified from inheriting the property of the deceased whose murder he commits or abets, as per the provision of Section 25 of Hindu Succession Act but it has to be pointed out that at the time of the incident, the accused-appellant Chunni Lal's father Ram Deo was also alive. Chunni Lal's brother Jagdish was also there. Therefore, there could be no benefit to Juggi Lal etc. by branding Chunni Lal to be the murderer of the deceased. In the eventuality of it being adjudged that Kaiya alias Chandrakalia was not his wife, Juggi Lal PW 1, his brothers and sisters including their mother were not to be legal heirs of Heera Lal. Then on the death of Heera Lal intestate, his property was to devolve on his brother Ram Deo (father of the Chunni Lal-accused) and after him on Chunni Lal's brother Jagdish. It was to be so even on Chunni Lal being branded the murderer of the deceased. Therefore, there could hardly be any reason for Juggi Lal and his brother Ram Sakh to falsely say and testify that Chunni Lal was his murderer. Otherwise also, it was far-fetched that Juggi Lal PW 1 and his brother Ram Sakh (eye-witnesses) would have made such long term planning by murdering Heera Lal and implicating Chunni Lal for the same. To make the long story short, we see no merit at all in the reasoning suggested by the learned Counsel for the accused-appellant to dislodge the prosecution case on the premise of the alleged absence or insufficiency of motive on the part of the accused in committing this crime. Rather, there was strong motive for the accused-appellant to have liquidated the deceased, as is prosecution case and the evidence.
13. Learned Counsel for the accused-appellant then challenged the testimony of Juggi Lal PW 1 and Ram Sakh PW 2 on the ground that they were interested witnesses and there was no corroboration of their testimony. It has been pointed out that Sri Keshan PW 5 mentioned as eye-witness of the incident in the F.I.R. who was also allegedly helping the deceased on the fateful clay, time and place in fanning the mustard crop to separate chaff from the grain turned hostile and did not support the prosecution case. We do not think that Sri Keshan's turning back to the prosecution case makes any dent to the advantage of the accused-appellant. The statement of Juggi Lal PW 1 was recorded on 4.7.1981 and he stated that for the last 2-3 years Sri Keshan was not his servant. It was admitted by Sri Keshan PW 5 also, though he denied to have crossed over to the side of the accused. Ram Sakh PW 2 stated that Sri Keshan PW 5 had gone in the service of the father of the accused and, therefore, he would not give evidence. It is common knowledge that people generally avoid giving evidence in criminal cases unless it is inevitable. The reason is that they do not want to invite trouble for themselves in future. After the incident, Sri Keshan ceased to be the servant of Juggi Lal PW 1 and his family and, therefore, he thought it proper not to support the prosecution case by saying and taking stand that though he had been called at Khalihan of the deceased through Munni Lal (another brother of Juggi Lal), but he had told him that he would reach there after taking meals. He tarried for some time as there was a sneeze and in the meantime the incident occurred. For practical purposes, the testimony of Keshan is neither any loss to the prosecution nor any gain to the accused. The testimony of Juggi Lal PW 1 and Ram Sakh PW 2 is of sterling nature proving clinchingly that it was the accused-appellant who shot dead the deceased on the given date, time and place. Their presence there was most natural as they were helping the deceased in the operation of separating the chaff and grain of mustard crop. Needless to say, such operations generally require to be attended by 2-3 or more persons.
14. The learned Counsel for the accused-appellant then argued that the deceased was shot dead by his own DBBL gun. Had the accused gone there to commit his murder, he would not have gone empty handed. Rather, he would have gone there with his own weapon to accomplish the job. The submission of the learned Counsel for the accused-appellant is not worthy of a moment's attention. The incident occurred in a village situate in Banda-dacoity infested area. The accused was on visiting terms with the deceased. Rather, the latter used to treat him with great affection. There was nothing unusual that he knew the deceased of being engaged in operations related to separation of chaff and grain at his Khalihan with his gun and cartridges kept there by the side. His visit to the Khalihan was not at all to be viewed with suspicion either by the deceased or, for that matter, by Juggi Lal PW 1 and Ram Sakh PW 2. Therefore, he went there empty handed, picked up the gun of the deceased himself kept by his side and used the same in shooting him down to translate his design in real action. Going there empty handed well fit in his scheme. On the other hand, it was risky if he had done there with his weapon to kill the deceased. The gun of the deceased could then be used in counter attack. That was risky for him. Obviously, there is clear explanation as to why he went there empty handed.
15. Another criticism levelled by the learned Counsel for the accused-appellant is that it was doubtful that Ram Sakh could only snatch the gun from fleeing accused by chasing him for a distance of 4 or 5 paces and the latter could manage to get away with the belt of cartridges. We do not locate any improbability in it. Ram Sakh PW 2 well explained that immediately after the incident he chased Chunni Lal for 6 or 7 paces, felled him by catching his leg and managed to snatch the gun from him, but he got up and ran away with the belt of cartridges. It was natural that Juggi Lal PW 1 and Ram Sakh PW 2 were aghast and stunned by the most unexpected act of the accused (own nephew of the deceased) in shooting him down picking up gun of the deceased and the belt of cartridges, filling two cartridges in the gun and opening two shots one after the other. As the reflexes of Ram Sakh actuated and helped him, he chased the accused and could manage to snatch the gun from him after felling him catching his leg. Instantly getting up, the accused managed to get away with the belt of cartridges.
16. We should also point out that an empty cartridge was found in each of the two barrels of the gun of the deceased wherewith the accused had committed this crime. They were sent to Ballistic Expert along with the gun. The report of Ballistic Expert Ext.-18 was to the effect that those cartridges had been shot from the right and left barrels of the gun in question. It further lent credence to the prosecution case and evidence of Juggi Lal PW 1 and Ram Sakh PW 2 which was in conformity with medical evidence that the deceased had received two aim shot wounds of entry with blackening and tattooing. That is to say, the shots had been fired from close range.
17. On consideration of the totality of the evidence on record and other attending circumstances, we do not find any force in any of the arguments advanced by the learned Counsel for the accused-appellant. The guilt of the accused-appellant was proved clinchingly.
18. We hereby dismiss the appeal. The accused-appellant Chunni Lal is on bail. The Chief Judicial Magistrate, Banda shall cause him to be arrested and lodged in jail to serve out the sentence of life imprisonment passed against him. He shall report compliance within two months from the date of receipt of a copy of this order which shall be sent by the Office immediately.