Bhagwan Singh vs State of Uttarakhand

U.C. Dhyani, J.—These three criminal appeals are directed against the same judgment and order dated 05.04.2005 passed by Addl. Sessions Judge / II F.T.C., Udham Singh Nagar whereby accused appellant Pawan Singh alias Guddu has been convicted for the offence punishable u/s 302 IPC; accused / appellants Bhagwan Singh and Mahesh Singh have been convicted for the offence punishable u/s 302 read with Section 34 of Indian Penal Code, 1860 in Sessions Trial No. 239 of 2003 and all the three accused have been sentenced to imprisonment for life and directed to pay a fine of Rs. 5,000/- each, in default of payment of which they are directed to undergo one year further imprisonment. Accused/appellants Bhagwan Singh and Mahesh Singh have also been convicted u/s 307 and sentenced to rigorous imprisonment for a period of five years and directed to pay a fine of Rs. 2,000/- each, in default of payment of which they are directed to undergo six months further imprisonment. Accused / appellant Pawan Singh alias Guddu has also been convicted u/s 307 read with Section 34 of I.P.C. and was sentenced to rigorous imprisonment for a period of five years and directed to pay a fine of Rs. 2,000/, in default of payment of which he is directed to undergo six months further imprisonment. All the three accused / appellants have also been convicted u/s 427 of I.P.C. and were sentenced to rigorous imprisonment for a period of one year. Accused / appellant Pawan Singh alias Guddu is further convicted u/s 27 of the Arms Act (in Sessions Trial No. 240 of 2003) and sentenced to rigorous imprisonment for a period of three years. Accused / appellant Bhagwan Singh is further convicted u/s 30 of the Arms Act (in Sessions Trial No. 240 of 2003) and sentenced to rigorous imprisonment for a period of six months. All the sentences are directed to run concurrently by the trial court.

Prosecution story, in brief, is that P.W.1 Jaikishan lodged a first information report (Ext. Ka-1) with police station Sitarganj, District Udham Singh Nagar with the allegation that on 15.06.2003 at about 04:00 P.M., his neighbour Bhagwan Singh s/o Kanhai Singh armed with lathi along with Mahesh Singh s/o Dasiram armed with spade and Pawan Singh s/o Bhagwan Singh armed with licensed gun of his father, in an attempt to demolish their thatch and cowshed, came there. Thereafter Bhagwan Singh armed with lathi and Mahesh Singh armed with spade, started assaulting Dinesh Singh (brother of the informant) Balmukund and Sachin (both sons of Shyamlal) with the weapons they were carrying. When the informant along with Bhajan Singh s/o Dhan Singh and Gopal Singh s/o of Ramji Lal came ahead to intervene in the matter, suddenly Pawan Singh s/o Bhagwan Singh armed with gun in an attempt to kill them started firing which hit Balmukund, Dinesh and Sachin s/o Balmukund. Balmukund succumbed to the injuries sustained by him on the spot. The informant (Jaikishan) after taking the injured Dinesh and Sachin to the hospital came to the police station and lodged the report. On the basis of said complaint, chick FIR (Ext. Ka-23) was prepared and Crime No. 221 of 2003 was registered against the accused Bhagwan Singh, Mahesh Singh and Pawan Singh in respect of offences punishable u/s 302, 307 / 34 of I.P.C. The licensed gun belonging to accused Bhawgan Singh was recovered by the police from the possession of accused Pawan Singh alias Guddu on 16.06.2003 at 05:30 P.M. from the house of accused Mahesh Singh r/o village Anjaniya, within the limits of police station Sitarganj, District Udham Singh Nagar. The police took the dead body in their possession, prepared inquest report (Ext. Ka-10) and other necessary papers and the dead body was sent in a sealed cover for postmortem examination. The postmortem examination was conducted by Dr. N.S. Bhatt (P.W.7) on 16.06.2003, at 12:30 P.M., who prepared autopsy report (Ext. Ka-8). The Medical Officer found one ante mortem gunshot injury on the body of the deceased and opined that Balmukund had died of shock and haemorrhage as a result of ante mortem injuries. Meanwhile, injuries on the person of Manglesh, Dinesh Singh and Sachin as well as the accused Mahesh Singh, who also received injuries, were examined by the three Medical Officers, viz., P.W.4 Dr. N. Chand, P.W.5 Dr. R.C. Sharma and P.W.6 Dr. V.S. Deopa, who recorded the same in Ext. Ka-3, Ext. Ka-4, Ext. Ka-6 and Ext. Ka-2, respectively.

Investigation of the case was taken up by P.W.10 S.I. B.R. Divakar. He inspected the spot, prepared site plan (Ext. Ka-13), Police Form No. 13 (Ext. Ka-12), memo of recovery of simple soil and bloodstained soil (Ext. Ka-15) and memo of recovery of two empty cartridges of 12 bore and a stick (Ext. Ka-16). Accused / appellant Pawan Singh alias Guddu was arrested on 16.06.2003 and on his disclosure a SBBL gun of 12 bore (Ext. I) used in the commission of crime was recovered. A memorandum of recovery (Ext. Ka-17) was got prepared in the presence of the witnesses. After completing the investigation, charge sheet (Ext. Ka-28) was filed against the accused / appellants Bhagwan Singh, Mahesh Singh and Pawan Singh alias Guddu, relating to offences punishable u/s 302, 307 / 34 and 427 of I.P.C. A separate crime relating to offences punishable u/s 25 / 27 / 30 of the Arms Act was registered after recovery of the SBBL gun of 12 bore, which was also investigated and a separate charge sheet (Ext. Ka-19) was filed against accused / appellants Bhagwan Singh and Pawan Singh alias Guddu after obtaining necessary sanction (Ext. Ka-18) from the District Magistrate, Udham Singh Nagar in respect of said offences. After interrogating the witnesses and on completion of investigation, the Investigating Officer submitted both the charge sheets (Ext. Ka-19 and Ext. K-28) against the accused Bhagwan Singh, Mahesh Singh and Pawan Singh alias Guddu for their trial in respect of offences punishable u/s 302, 307 / 34 and 427 of I.P.C. and one relating to offence punishable u/s 27 against Pawan Singh alias Guddu and section 30 of the Arms Act against accused Bhagwan Singh. The Investigating Officer also sent two empty cartridges of 12 bore and one blood stained stick to Forensic Science Laboratory, Agra for examination.

The Magistrate, on receipt of both the charge sheets and after giving necessary copies to the accused, committed the case to the court of sessions for trial. Learned Addl. Sessions Judge / F.T.C. (First), Udham Singh Nagar, after hearing the parties on 24.08.2003, framed charge of offences punishable u/s 307, 302 read with Section 34 and 427 of I.P.C. against the accused Bhagwan Singh and Mahesh Singh. Charge in respect of offences punishable u/s 307 read with Section 34, 302 and 427 was framed against accused Pawan Singh alias Guddu. A separate charge was also framed against accused / appellant Bhagwan Singh u/s 30 Arms Act and Pawan Singh alias Guddu in respect of offence punishable u/s 27 of the Arms Act. All of them pleaded not guilty and claimed to be tried. On this, prosecution got examined P.W.1 Jaikishan (informant and eyewitness); P.W.2 Dinesh; P.W.3 Sachin (injured eyewitness); P.W.4 Dr. Naresh Chand (who recorded the injuries on the person of accused Mahesh); P.W.5 Dr. R.C. Sharma (who examined the injuries on the person of Manglesh); P.W.6 Dr. V.S. Deopa (who examined the injuries on the person of Dinesh Singh; P.W.7 Dr. N.S. Bhatt (who conducted the postmortem examination); P.W.8 Dr. M.S. Sharma (Radiologist); P.W.9 S.I. D.S. Verma (arresting officer); P.W.10 S.I. B.R. Divakar (who started the investigation); P.W.11 Constable Matloob Khan (member of the arresting party); P.W.12 S.I. Ashok Kumar (who investigated the crime relating to Arms Act); P.W.13 Dr. J.P. Bhatt; P.W.14 Inspector Rajeev Kumar (who submitted charge sheet (Ext. Ka-19) and P.W.15 Pradeep Kumar Pant (Village Panchayat Development Officer). In defence D.W.1. Ashok Kumar was examined. The oral and documentary evidence was put to the accused u/s 313 of Cr.P.C., in reply to which they alleged that the evidence adduced against them are false. The trial court found accused / appellants Bhagwan Singh & Mahesh Singh guilty of charge of offences punishable u/s 302 IPC read with Section 34 IPC, 307 / 34 and 427 of I.P.C. and accused -appellant Pawan Singh alias Guddu was found guilty of charge punishable u/s 302 IPC and one relating to offence punishable u/s 27 of Arms Act. Accused-appellant Bhagwan Singh was convicted for the offence punishable u/s 30 Arms Act. After hearing the parties on sentence, each one of the convicts was sentenced to imprisonment for life and directed to pay fine of Rs. 5,000/- u/s 302 read with Section 34 of I.P.C (accused Pawan Singh u/s 302 IPC). Convicts Bhagwan Singh and Mahesh Singh were also sentenced to rigorous imprisonment for a period of five years and directed to pay fine of Rs. 2,000/- u/s 307. Convict Pawan Singh alias Guddu was further sentenced to rigorous imprisonment for a period of five years and directed to pay fine of 2000/- u/s 307 read with Section 34 of I.P.C. Each one of the convicts was sentenced to rigorous imprisonment for a period of one year u/s 427 of I.P.C. As to the offence punishable u/s 27 of Arms Act, convict Pawan Singh alias Guddu was further sentenced to rigorous imprisonment for a period of three years and convict Bhagwan Singh was sentenced to rigorous imprisonment for a period of six months u/s 30 of the Arms Act. Aggrieved by said judgment and order dated 05.04.2005, present criminal appeals have been filed by the convicts separately.

It will be worthwhile to take up the ante mortem injuries first which have been recorded by P.W.7 Dr. N.S. Bhatt, who prepared autopsy report after postmortem examination on dead body of Balmukund on 16.06.2003, at 12:30 P.M. The ante mortem injuries recorded in autopsy report (Ext. Ka-8) are being reproduced below:-

i) A rounded lacerated wound on right anterior chest over III IV V internal spine lateral to Sternum measuring 4 cm x 4 cm. And small rounded lacerated wound around injury no. (i) on count (38) in number, measuring 0.2 cm X 0.2 cm in an area of 9 cm x 8 cm. On exploration the castorandal bone adjacent to sternum III IV & V lost. On further exploration lacerated wounds present over right lung which remained 1/4 of its size, blood found in the chest cavity, right atrium of heart lacerated, both chambers empty.

ii) On search in the pool of blood on counting seven pellets found, kept in a sealed state.

The Medical Officer (P.W.7 Dr. N.S. Bhatt) has opined in the autopsy report that the cause of death is due to shock and haemorrhage as a result of ante mortem injuries.

P.W. 1 Jaikishan has stated in his examination-in-chief that he knew accused Bhagwan Singh, Mahesh Singh and Pawan Singh who resided in his village. On 15.06.2003 at 4 p.m. accused Bhagwan Singh armed with a lathi, Mahesh Singh with a shovel/spade and Pawan Singh armed with licensed gun came to destroy the roof (Chhappar) of his Cowshed. When they were asked not to do it, then Bhagwan Singh and Mahesh Singh started inflicting blows of lathi and shovel on Dinesh Singh, Balmukund and Sachin. Jaikishan, Bhajan Singh and Gopal Singh tried to rescue them. At this Pawan Singh fired at Balmukund, Dinesh and Sachin resulting in death of Balmukund. Dinesh and Sachin sustained injuries. This witness has proved complaint (Ext. Ka-1).

PW 2 Dinesh has supported the prosecution story. He has corroborated the evidence of PW 1 Jai Kishan. He is one of the injured.

PW 3 Sachin has also supported the prosecution story and corroborated the oral testimony of the earlier two witnesses. He also sustained injuries in the incident.

PW. 4 Doctor Narendra Chandra, Medical Officer, PHC, Sitarganj was posted on 17.06.2003 in the same capacity at the same place. On that day he examined the injuries of accused Mahesh and has proved the injury report of Mahesh (Ext. Ka-2).

PW 5 Doctor R. C. Sharma, In charge Medical Officer, PHC, Sitarganj has medically examined Manglesh on 16.06.2003 at 12:30 pm and has proved her injury report (Ext. Ka-3).

PW 6 Doctor V.S.Deopa, Medical Lecturer and Demonstrator, Medical Training Centre had medically examined Dinesh on 15.06.2003 at 10:10 pm and has proved his medical report (Ext. Ka-4). He has also proved his X-ray report and supplementary report as Ext. Ka-5. On that day he also medically examined Sachin and has proved his medical report (Ext. Ka-6) along with X-ray report /supplementary report as Ext. Ka-7.

PW 7 Doctor N.S.Bhatt, Base Hospital, Haldwani has conducted post-mortem report on the body of Balmukund and found ante-mortem injuries. The Doctor has said that the cause of death of Balmukund was due to shock and haemorrage as a result of ante mortem injuries. He has also said that these ante-mortem injuries were caused on 15.06.2003 at 4:00 pm. This witness has proved the post-mortem of Balmukund (Ext. Ka-8).

PW 8 Doctor M.S. Sharma is Radiologist. He was posted on 16.06.2003 in Soban Singh Jeena Hospital, Haldwani as Radiologist. He has proved material Exts. 1 & 2.

PW 9 S.I. D.L.Verma was posted as SSI on 15.06.2003 at P.S. Sitarganj. A First Information Report was lodged for the offence punishable under sections 302, 307 read with section 34 IPC against the accused persons Bhagwan Singh, Mahesh Singh and Pawan Singh. He took the public witnesses Pheroo Singh alongwith Mahesh Singh and affected arrest of Pawan Singh alias Guddu who confessed his guilt. On his disclosure and pointing, he recovered the licensed gun of Bhagwan Singh by which he had caused the death of Balmukund and fired at Dinesh and Sachin whereby they sustained serious injuries. He has proved recovery memo (Ext. Ka-9) and instituted case under the Arms Act and also proved gun as material Ext. 1.

PW 11 Constable Matloob is also a witness to the confession, disclosure, pointing out and recovery of gun of Pawan Singh. He has proved recovery memo of the incriminating article SBBL gun (Ext. Ka-17).

PW 12 SI Ashok Kumar Verma is the Investigation Officer of crime no. 222 of 2003 under sections 25/27 Arms Act and section 30 Arms Act. He has proved prosecution sanction (Ext. Ka-18) and Charge sheet (Ext. Ka-19). The site plan (Ext. Ka-20) was prepared by SI B. R. Divakar.

PW 13 Doctor J.P. Bhatt was posted as Medical Officer on 16.06.2003 in Base Hospital, Haldwani. He had examined Sachin and Vineet Singh and has proved medical report of Sachin as Ext. Ka-21 and Vineet Singh as Ext. Ka-22.

PW 14 Rajeev Kumar, Inspector was posted on 15.06.2003 as Inspector, Kotwali Sitarganj. On that date crime no. 221 of 2003 u/s 302, 307/34 IPC State vs. Bhagwan Singh and others was registered on the basis of complaint of Jaikishan. This witness has proved the First Information Report (Ext. Ka-23), entry in G.D. (Ext. Ka-24) and autopsy report (Ext. Ka-25). He took the statements of Jaikishan, inspected the place of occurrence, prepared site plan (Ext. Ka-26), recovery memo of cartridge and stick {(danda) (Ext. Ka-16)}, took blood stained soil and simple soil and prepared memo (Ext. Ka-15). He also took the statements of witnesses, prepared site plan (Ext. Ka-27) and submitted charge-sheet (Ext. Ka-28). The Investigating Officer also obtained prosecution sanction from the District Magistrate and also proved the report of FSL (Forensic Science Laboratory). Initially the investigation was entrusted to S.I. D.L.Verma for a while.

PW 15 Pradeep Kumar Pant was posted as Village Panchayat Development Officer since 12th November, 2003. This witness was examined on 28.02.2005 and had brought the original family register of the residents of village Dohara which contained the dates of births and deaths of the residents of said village. According to this register the date of birth of the accused Pawan Singh s/o Bhagwan Singh is 1984. He has proved the certified copy of the family register of Bhagwan Singh as Ext. Ka-29. In the cross-examination this witness as admitted that the register did not contain the date of birth of any resident of the village.

DW 1 Ashok Kumar Ahuja had brought the school register to show that the date of birth of Pawan Rana son of Bhagwan Singh, resident of village Dohara, Tehsil Sitarganj, District Udham Singh Nagar is 03.10.1985. In the cross-examination, DW 1 Ashok Kumar Ahuja has said that the entries in Ext. Kha-1 to Kha -5 were made on the basis of oral information furnished by Bhagwan Singh who is father of Pawan Rana. When Pawan was admitted to class II he did not furnish any proof of passing class I.

If the evidence of DW 1 Ashok Kumar Ahuja is reckoned with, then accused Pawan Rana completed 18 years on 03.10.2003, as his date of birth was shown to be 03.10.1985. The incident has taken place on 15.06.2003. According to this calculation he is approx three months short of 18 years on the day the incident took place, but if his date of birth is reckoned in the year 1984, as per the statement of PW 15 Pradeep Kumar Pant then even if he is born on 31st December of that year, he would have completed 19 years on 31st December, 2003. By that reckoning he had crossed 18 years on the date when this incident took place.

The question arises whether the accused persons Bhagwan Singh, Mahesh Singh and Pawan Singh had killed Balmukund and used firearm, shovel and lathi in order to take away the lives of Dinesh, Manglesh and Sachin. The prosecution has produced PW 1 Jaikishan, PW 2 Dinesh and PW 3 Sachin in this context.

PW 1 Jai Kishan is the complainant. He has said that Bhagwan Singh, Mahesh Singh and Pawan Singh belong to the same village. On 15.06.2003 at 4:00 pm Bhagwan Singh was armed with lathi, Mahesh Singh armed with shovel and Pawan Singh had licensed gun. They came to the roof (chhappar) of their cowshed and started breaking it. Jaikishan (complainant), Dinesh, Balmukund and Sachin refrained them from doing so. On this, Bhagwan Singh with lathi and Mahesh Singh with shovel started beating Jai Kishan, Dinesh and Balmukund. Gopal Singh and Bhajan Singh came to their rescue. When they dragged Balmukund to the northern side of the shop, accused Bhagwan Singh and Mahesh Singh told accused Pawan to shoot them. Pawan fired at Balmukund. The bullet hit Balmukund''s chest and he died instantly. Dinesh went forward to save him. Pawan fired the second bullet which hit Dinesh in the abdomen. The pellets hit Sachin and Manglesh who were working there. The information of this incident was given to the Police Station concerned.

PW 2 Dinesh has also supported the prosecution story. He has corroborated the evidence tendered by PW 1 Jaikishan. He has also said that on 15.06.2003 at 4:00 pm Bhagwan Singh armed with lathi, Mahesh Singh armed with shovel and Pawan Singh armed with licensed gun of his father, (they) started dislodging the animal shed. Dinesh (this witness), Balmukund, Sachin and Jaikishan asked them not to do so, Bhagwan Singh and Mahesh Singh started hitting him (Dinesh), Balmukund and Sachin with lathi and shovel. After this marpeet, Bhagwan Singh and Mahesh Singh caught hold of Balmukund and dragged him up to the shop. Bhagwan Singh and Mahesh Singh asked Pawan to fire at him. On this Pawan Singh hit the first bullet to Balmukund resulting in his instant death. When he (Dinesh) tried to save him then Pawan fired second bullet on him which hit his feet/leg. Sachin and Bhagwan were hit by pellets. He was medically examined in the hospital. The subject matter of dispute was chapper (thatch).

PW 3 Sachin has also supported the prosecution story. He has corroborated the oral testimony of the earlier two witnesses. The incident took away the life of Balmukund and tried to take away lives of Dinesh and Manglesh who sustained injuries on the spot.

Suggestions have come forward on behalf of the accused-appellants that the incident did not take place in the manner in which prosecution witnesses have depicted the same to have taken place. Suggestions have also come on behalf of the appellants that Jaikishan and Balmukund were going to kill Bhagwan Singh with axe and only then accused Pawan fired on Balmukund. In this way the appellants have obliquely admitted their presence on the spot. It appears that they have pleaded for private defense. PW 3 Sachin has denied that Jaikishan and Balmukund had gone to kill Bhagwan Singh. In fact, no axe was there in the hands of Balmukund at the time of incident. It is clear from the testimony of prosecution witnesses that appellants Bhagwan Singh and Pawan Singh were present on the spot. So far as the presence of accused Mahesh Singh is concerned, it has come in the evidence of PW 4 Doctor Narendra Chandra that (accused) Mahesh Singh also sustained injuries. Doctor Narendra Chandra had medically examined accused Mahesh Singh on 17.06.2003 and found swellings in his right hand and lower side of the back. The injuries sustained by accused Mahesh Singh were caused by some blunt object. Thus the presence of all the three accused persons - appellants on the place of occurrence is proved.

All the three witnesses have said that when they asked the accused persons not to dislodge the chhappar, then accused Mahesh Singh and Bhagwan Singh told Pawan Singh to fire bullet. Pawan Singh fired at Balmukund. There is no discrepancy in the contents of First Information Report and the evidence of eye-witnesses. The place of occurrence has not been changed. If the prosecution witnesses say that the accused persons dragged Balmukund to the shop of Bhagwan Singh, there is no much distinction between the chhappar and the shop of Bhagwan Singh. It was a continuous process. It was very difficult for the eye-witnesses to have fixed a particular point on which accused Pawan Singh fired at Balmukund, whereby said Balmukund was killed on the spot. The others also sustained injuries. PW 1 Jaikishan has said in his oral testimony that Bhagwan Singh''s shop is on the spot. Accused Pawan Singh did not fire when Balmukund was in chhappar. The accused persons dragged Balmukund to the shop of Bhagwan Singh and then the shots were fired at him. The shop is situated at 3-4 paces from khadanja (brick path). Nowhere it appears that the complainant or his companions were the aggressor or Balmukund might have tried to kill Bhagwan Singh. Bhagwan Singh did not sustain any injury. The First Information Report is clear on the terms as to which accused was armed with which weapon. It is true that none of the persons on the complainant side had sustained injuries of shovel/spade but since Mahesh Singh has sustained injuries on the spot which confirms his presence on the spot. Moreover, eyewitnesses have also proved his (Mahesh) presence and overt act on the place of occurrence.

It was argued on behalf of the appellants that Bhajan Singh and Gopal Singh have not been produced on behalf of the prosecution. The law is settled on the point. The Indian Evidence Act nowhere prescribes the number of witnesses to be produced by any party. Moreover it is the quality of evidence that matters and not the quantity (number of witnesses). Furthermore, who had stopped the accused persons to array Bhajan Singh and Gopal Singh as defence witness, if they were supporting the accused persons. They could well have produced Bhajan Singh and Gopal Singh in defence evidence.

The place of occurrence has not been changed. There is hardly a distance of 3-4 pace between the cow-shed and the shop of Bhagwan Singh. The prosecution story cannot be discarded on this small point, especially when all the prosecution witnesses have supported the prosecution story and have withstood the test of cross-examination successfully. It was not a case in which it was obligatory on the part of the prosecution to have explained the injuries of accused Mahesh Singh. The medical evidence has corroborated the testimony of eyewitnesses. Medical evidence has corroborated the eyewitness account.

It was also pleaded on behalf of the accused/appellants that they were not required to prove the right to private defence in the manner the prosecution is required to prove the case against the accused persons beyond the reasonable doubt. This Court is agreeable to the proposition of law thus advanced in this behalf but unfortunately for the accused persons none has pleaded right to private defence in their statements u/s 313 Cr.P.C. No doubt the questions have been asked from the prosecution witnesses suggesting private defence but the same has not been proved, even prima-facie. If it is conceded for the sake of arguments that the accused persons acted in exercise of their right to private defence, the law is clear on the point that such right should not be exercised in excess of what was really essential to repel the force of aggression. In this case, the accused persons have exceeded their suggested right to private defence and hence, they are not entitled to be given any benefit of it. First of all there is no evidence to suggest that Balmukund tried to cause harm to Bhagwan Singh with the axe. When this is not proved, there is no justification to kill Balmukund with a bullet.

Since accused Pawan had used the SBBL licensed gun of Bhagwan Singh, therefore, offence punishable u/s 27 Arms Act is proved against Pawan Singh. Bhagwan Singh permitted his SBBL gun to be used by accused Pawan, therefore, he is found guilty of offence punishable u/s 30 Arms Act. Since the property of the complainant was damaged, therefore offence punishable u/s 427 IPC is also proved against the accused persons.

The case of the appellants is confession and avoidance. On the one hand they have denied the prosecution story but on the other hand it is the contention of the appellants that the same was done in exercise of right of private defence. The appellants have not been able to decide as to which way to go. Why a gun was given in the hands of a minor (as claimed by Pawan Rana)? The appellants have not said anything in their statements u/s 313 Cr.P.C. No doubt the accused appellants have a right to maintain silence but the moment they suggest something or say something it is up to them to prove that thing albeit the standard of proof may vary to their benefit. The intention to commit the crime was to prevent the complainant and his companion from encroaching upon the land of the assailants. Even if it we presume that the words displaying exhortation have not been uttered, it does not help Bhagwan Singh and Mahesh Singh to get rid of section 34 IPC. After the appellants'' case is lifted, they are exposed. Pawan had killed Balmukund. There is direct evidence about that. One accused was armed with SBBL gun, another with shovel/spade and the third one with lathi. Common intention on the part of accused Bhgawan Singh and Mahesh Singh is established.

The arguments relating to self-defense are the inventions of the appellants. They are figments of imagination. Why did they not lodge the First Information Report? If they or any of them went to lodge First Information Report and the same was not entertained, they could have informed the same to Police Chief of the district and could have taken recourse to section 156(3) Cr.P.C. Had their case of retaliation established, the matter would have been different. The appellants have used everything - gun, lathi (stick) and shovel/spade. Injured persons did receive the lacerated wound which may be caused by lathi. PW 2 Dinesh got injured and received abrasion and lacerated wound. His presence on the spot is established and so is his testimony. The name of Mangelesh was not mentioned in the First Information Report. She received only one injury. The deceased sustained only one firearm (gun) shot injury in the chest and the appellants got rid of him. The testimony of PW 3 Sachin cannot be brushed aside only on the ground that he is a child witness. There is yet another aspect of the case. Why should the injured/victim start fighting when the construction of chhappar was either under process or it was already constructed.

The occurrence took place on 15.06.2003 at 4:00 pm in which one person died and 3 persons got injured. The First Information Report was lodged on the same day at 6:20 pm by the brother of the deceased. The village in which this occurrence took place is 6 kilometers away from the Police Station. The name of accused Mahesh did not figure in the First Information Report. A person narrating the incident to the scribe was concerned with the man who died. Small hitches here and there do not matter. The appellants did not lead evidence to suggest that it is a case of free fight. There was not a single whisper in their statements u/s 313 Cr.P.C. about free fight. Injury report of accused Mahesh is also there. The appellants were harping on small things. It is human behaviour not to remember everything. It is unfortunate that instead of catching the bull by the horn, the appellants ran after a mouse.

The question of juvenility of Pawan Singh alias Guddu is still undecided. Let us revisit the evidence offered by prosecution as well as defence in this behalf.

PW 15 Pradeep Kumar Pant, Village Panchayat Development Officer, Village Panchayat Dohra, Block Sitarganj has said that he is posted as such since 12th November, 2003. He had brought original family register of Gram Panchayat Dohra. This register contains the dates of birth and death of the residents of village Dohra. This register also contains the dates of birt of the family members of Bhagwan Singh son of Kanhai Singh at page no. 161. According to this register the year of birth of Pawan Singh son of Bhagwan Singh has been recorded as 1984.

According to PW 15 Pradeep Kumar Pant when the birth of any child takes place an affidavit is taken and the facts are verified as per Performa 1 within one month of the birth of any child. The year of birth of Pawan Singh must have been registered in the same way. The register is maintained according to official rules. The witness has produced the certified copy of the original family register of Bhagwan Singh as Ext. Ka-29.

But PW 15 Pradeep Kumar Pant has admitted in the cross-examination that the date of birth of any child has not been mentioned in this register. The register also did not disclose the dates on which the entries were made. There is another discrepancy in the register. The year of birth of one Reena d/o Bhagwan Singh was 1982 but the same has been shown as the last entry even though others were also born after 1982 and entries in respect of their birth have been made in the register. The witnesses also admitted that in the absence of any entry of date of birth, it is not possible to ascertain the same. It may be any date in that particular year. He did not rule out the possibility that the date of birth of Pawan Singh may be either 31.12.1984 or 01.01.1984. The last entry in this register is of the year 1987. But again there is an entry of year 1982. This register has not been filled up by the witness in his own handwriting. He is not aware as to who had filled up this register. The certification of the entries has also not been made in his presence.

A perusal of the above statement reveals that the entries in the register have been made in a haphazard way. The same are not systematic and moreover the dates of birth have not been mentioned in the same. It leaves great scope for guesswork. There is a question mark on the entries of the said register because on the one hand, the witness said that the entries are made within a month of the birth of a child (after proper verification) but on the other hand no such date of verification has been mentioned in it. Had there been entry of date of birth, the same could have been reckoned with. But unfortunately, everything has been left to guess work.

Learned trial court has believed the evidence of PW 15 Pradeep Kumar Pant. According to the trial court accused Pawan is in jail since 2003. He has not moved any bail application. He did not move any application before the Magistrate to plead that he is a juvenile. During the course of trial he did not say anything. He has not said anything in his statement u/s 313 Cr.P.C. that he was a juvenile on the date of incident. According to learned trial court accused Pawan Singh has not furnished High School certificate. Why will a man not take a plea of juvenility and will prefer to remain in the jail? According to learned trial court the T.C. (Transfer Certificate) has been filed so late that the same causes suspicion on the authenticity of the T.C. The learned Additional Sessions Judge has also cited some rulings but we are afraid, the same do not help the prosecution. It is a settled law that the question of juvenility can be raised at any stage and the accused Pawan Singh has done it at the time of arguments before the Additional Sessions Judge. A supplementary affidavit has been filed by accused Pawan Singh before this Court on 22nd May, 2011 pleading juvenility. The photocopy of the scholars register and Transfer Certificate Form issued by the Principal of Sarvoday Purva Madhyamik Vidyalaya, Sitarganj has also been filed to show that he passed class VIII in the year 1999 and his date of birth is 03.10.1985. According to the Leaving Certificate of Gurunanak Public School from where Pawan Rana passed class V, his date of birth is 03.10.1985. Let us see whether the testimony of defence witness is of any help to the appellant Pawan Singh or not?

41 DW 1 Ashok Kumar Ahuja, on the date when his evidence was recorded by learned trial court on 18.01.2005 had said that he is working as clerk in Gurunanak Public School, Sisaikhera since 1992. He has proved the copy of the certificate signed by the Principal of the school as Ext. Ka-1. According to the register brought by this witness, Pawan Rana took admission in the class II on 01.07.1992 but remained absent from the class and therefore, his admission was cancelled. According to the scholar register brought by this witness the date of birth of Pawan Rana is 03.10.1985, a photocopy of which has been certified and filed by this clerk of the school as Ext. Kha-2. Pawan Rana again took admission in the said school in class III on 09.09.1993 and passed class V. The copy of the scholar register of the same has been proved as Ext. Kha-3. The clerk of the school has also filed other papers relating to Pawan''s date of birth as Ext. Kha 3 & 4.

In the cross-examination, D.W. 1 Ashok Kumar Ahuja has said that the entries in Ext. Kha-1 to Kha -5 in relation to the age of Pawan Rana (read Pawan Singh) have been made on the basis of oral information given by Bhagwan Singh, the father of Pawan Singh. He has admitted that the entries in the school register are made on the basis of register maintained by Panchayat Secretary and the papers issued by Registration of Birth and Death Office. According to this witness, the age of Pawan Rana as on the date of recording of evidence (18.01.2005) was more than 19 years & 3 months. He has however, admitted that when Pawan Rana was admitted in class II, no proof of his passing out class I was taken.

Learned trial court, in pages 29 & 30 of the judgment, has found the family register maintained by panchayat as acceptable piece of evidence and did not find school leaving certificate as a reliable piece of evidence. The reasons assigned thereof in relation to school leaving certificate appeal to us. Further under Rule 12 of the Juvenile Justice (Care & Protection of Children) Rules, 2007 there is no contemplation of accepting such school leaving certificate for adjudging juvenility of a person. As we have said earlier that there is no matriculation certificate available in respect of appellant Pawan Singh. The family register maintained by the Panchayat does not inspire confidence to us. Hence, there is no option but to take recourse to Rule 12(3)(b) of the Juvenile Justice (Care and Protection of Children) Rules, 2007. A direction is thus given that the medical opinion be sought from a duly constituted Medical Board which will declare the age of appellant Pawan Singh after conducting ossification test.

If the age of appellant Pawan Singh is found to be below 18 years on the date of offence, the board shall in writing pass an order stating the age and declaring the status of juvenility or otherwise.

If the appellant Pawan Singh is found to be a juvenile on the date of offence, the sentence passed by learned trial court against accused Pawan Singh shall be deemed to have no effect and then the Juvenile Justice Board shall proceed as per Section 15 of the Act.

But if the accused / appellant Pawan Singh is not found to be a juvenile on the date of offence, his conviction will be upheld and he will be dealt with according to the judgment and order of the trial court dated 05.04.2005.

Hence, the criminal appeals filed on behalf of the appellants Bhagwan Singh and Mahesh Singh are dismissed. The judgment and order passed by the learned trial court is affirmed so far as it relates to the appellants Bhagwan Singh and Mahesh Singh. Appellant Bhagwan Singh is in jail. Appellant Mahesh Singh is on bail. His bail is cancelled. He is directed to surrender before the court concerned. Both the accused-appellants Bhagwan Singh and Mahesh Singh shall be made to serve out the sentence awarded by the trial court against them and affirmed by this Court. A copy of this judgment be sent to the Superintendent of Jail where accused appellant Bhagwan Singh is serving out the sentence.

Let the lower court record be sent back for ensuring the compliance of this order.

In respect of the accused / appellant Pawan Singh, this court is of the view that the evidence has correctly been appreciated by the learned trial court. We at the same time affirm the sentence as awarded by the trial court against him, but forward the appellant Pawan Singh to the Juvenile Justice Board, Udham Singh Nagar for the purpose of passing order in respect of Juvenility of the said appellant in accordance with the provisions of Juvenile Justice (Care and Protection of Children) Act, 2000 and Juvenile Justice (Care and Protection of Children) Rules, 2007 as directed above. In the event it is found that the said appellant was a Juvenile at the time of commission of the offence, the said board will deal with the matter in accordance with law, but if not, ensure handing over of the custody of the said appellant to the Sessions Judge, Udham Singh Nagar so as to ensure that the said appellant serves out the remaining sentence.

The appellant Pawan Singh, who is on bail, is directed to be present before the Juvenile Justice Board, Udham Singh Nagar with a certified copy of this order on 20th January, 2012, whereafter, the matter shall be dealt with by the Juvenile Justice Board, Udham Singh Nagar and thereafter by the Sessions Judge, Udham Singh Nagar, if required. The prosecution is directed to ensure that the records and papers in connection with the incident in question are placed before the Juvenile Justice Board, Udham Singh Nagar at the appropriate time.