Bira and Others vs State

K.S. Rakhra, J.—Seven persons aggrieved by the judgment and order dated 16.4.1982 passed by VII Addl. Sessions Judge, Aligarh in S.T. No. 277 of 1980 State v. Bira and Ors., preferred this appeal u/s 374(2) Cr.P.C. Out of seven appellants three namely Omveer, Ahmad Saeed and Suresh have expired during pendency of appeal and their appeal has abated vide order dated 18.7.2007. The remaining appellants namely Bira son of Saudan, Tara son of Munshi, Onkar son of Hira Singh, all resident of Kidhara police station Harduwaganj district Aligarh and Mohd.Shafi resident of Harduwa police station Harduwaganj have been sentenced by the trial court to life imprisonment u/s 302/149 IPC and three years ''rigorous imprisonment u/s 452 IPC. In addition to this, appellants Bira, Tara and Onkar have further been sentenced to seven years'' rigorous imprisonment u/s 307 read with 149 PC and one and half years'' rigorous imprisonment u/s 148 IPC. Similarly Mohd. Shafi has further been sentenced to five years'' rigorous imprisonment u/s 307 read with 149 IPC and one year''s rigorous imprisonment u/s 147 IPC. The case relates to police station Harduwaganj district Aligarh and has arisen out of crime case No. 79 of 1980.

According to the prosecution, about 5 to 6 years prior to the date of occurrence, an attempt was made on the life of Shishupal uncle of Jalsur. In that connection, appellant Tara, his brother Mahabir and father Munshi faced trial u/s 307 IPC and were held guilty and sentenced to four years'' rigorous imprisonment by the court of Session. In appeal, the conviction was maintained but sentence was reduced to two years. It is said that since then Munshi is absconding Appellants Tara, Bira and Onkar are related to one and another.

Jalsur had also lodged a report u/s 395 IPC against Tara and Mahabir but the said case ended in acquittal.

The prosecution case is that in the night of 22/23.3.1980 at about 12''O clock Jalsur and his uncle Onkar Singh son of Sher Singh (the deceased) were sleeping on the roof of their ''Kotha'' in village Kidhara. In front of his house, on the chabutara, one Jagdish who runs a shop in outer room of informant''s house was sleeping. This Jagdish honm sound of movement of certain persons and suspecting that somo malefactors were reaching there to commit some crime, Jagdish raised alarm and took to his heals. Informant Jalsur and his uncle Onkar also woke up. While Onkar climbed down from Kotha towards Chabutara, Jalsur jumped in the adjoining house of his uncle Bahori and came out in the open and set fire to a ''Chappar'' in front of his own house. In the light of fire made on account of burning of ''Chappar'', he saw appellants Bira, Tara, Onkar and their companions scuffling with his uncle Onkar (the deceased). Bira was armed with gun, Tara and accused Onkar had country made pistol and their companions were also armed with lathi, ballam and fire arm. On the alarm being raised, villagers started collecting. Some of the companions of Bira, Tara and Onkar then climbed up the roof of the house and kept on firing indiscriminately in order to scare the witnesses. The informant also saw that during Bira, Tara and accused Onkar scuffling with the deceased, a shot was fired which struck in his chest. Some of their companions climbed down in to the house of informant. They tried to break open the door of the rooms but on their failure to do so they opened fire on the doors as well as in side the room through a ventilator. This firing caused injuries to informant''s son Chandra Bose and daughter Tarawati. On seeing pressure mounting, the culprits pushed the deceased into the fire of ''Chappar'' which was set ablaze by the informant. It is claimed that in this incident some of the culprits also received injuries of stray pellets from the shot fired by themselves. Informant''s uncle Onkar son of Sher Singh died on the spot.

A report of this incident was lodged by Jalsur (P.W. 2) on the same day at 2.15 a.m. at the police station which was three miles away. In the FIR the above incident was narrated and motive of the crime was also indicated. It was further alleged that this crime was committed in connivance with Rati Ram. Thus Bira, Tara, Onkar Singh son of Hira Singh and Rati Ram were named in the FIR and it was mentioned that they were accompanied by 8-10 unknown malefactors whose faces had been seen and they could be identified by the witnesses. The incident was witnessed by informant Jalsur, PW-2. Shishu Pal P.W.3, Bani Singh P.W.4 besides others.

At the police station Harduwaganj, the case was registered by constable clerk Karan Singh, P.W.9. He prepared chik report and the investigation of the crime was taken over by S.O. N.P. Singh P.W.6. He visited the place of occurrence and got an inquest of the dead body conducted through S.I. Sarnam Singh. After due formalities and preparation of relevant documents, dead body of Onkar son of Sher Singh was sent for autopsy. The Investigating Officer recorded the statements of the witnesses, made spot inspection and at the place of occurrence, he found seven empty shells of 12 bore cartridges fired by the culprits. He took them into possession and prepared recovery memo. A site plan was prepared and sample of bloodstained and plain earth was collected. He also collected from the place of occurrence sample of ash of burnt ''Chappar'' and prepared memo thereof.

On 25.3.1980 at about 12 0 clock in the noon in village Gur Sikaran, the Investigating Officer arrested appellant Mohd. Shaft alongwith Ahmad Saeed, Suresh etc. in connection with some other crime. Since they confessed their involvement in the present crime also he made them ''Baparda'' on the spot and brought them to the police station. One of the culprits Mohd. Shafi was also found having some fire arm injuries on his body. He was therefore, sent for medical examination.

Dr. D.P. Singh, P.W.1 of PHC Harduwaganj had examined the injuries of Tarawati daughter of Jalsur on 23.3.1980 at 1.15 p.m.and following injuries were found by him:

Lacerated circular pellet wound 1/8" x 1/8" x muscle deep on the anterior aspect of scalp exactly in the mid line of head.

The injuries, in the opinion of the doctor, were simple and were caused by fire arm and it was half day old.

Similarly Chandra Bose was examined by this doctor on 23.3.1980 at 1.20 p.m. and the following injuries were found on him:

Lacerated circular wound 1/8" x 1/8" x muscle deep on the right side of face, 1 1/2" in front of the lower angle of right mandible.

Lacerated circular wound 1/8" x 1/8" x muscle deep on the right side of scalp, 4 1/2" above the base of right ear and 1 1/2" away from mid line.

Lacerated circular wound 1/8" x 1/8" x muscle deep on the left side of scalp 1/2" away from mid line and 2 1/2" above the left eye brow.

Lacerated circular wound 1/8" x 1/8" x muscle deep on the left side of scalp 1" behind the injury No. 3.

All the injuries were simple in nature and were caused by fire arm and their duration was about half day old.

Similarly the same doctor examined the injuries of Mohd. Shafi on 26.3.1980 at 11.15 a.m. and the following injuries were found on his person:

Circular wound 1/8" x 1/8" x muscle deep on the front aspect of right forearm 4" below the level of right elbow joint./

Multiple circular wound 1/8" x 1/8" x muscle deep on the front and lateral aspect of right upper arm 12 in numbers in an area 8 x 5 between the shoulder and elbow joint.

Three circular wounds 1/8" x 1/8" x muscle deep each in an area of 3 1/2" x 2" on the top of the right shoulder joint.

Multiple circular wounds 1/8" x 1/8" x muscle deep, 5 in numbers, extending in a linear fashion starting from 3 1/2 "above the right nipple to the lower part of 9th rib at a place 6 1/2" away from mid line of back.

In the opinion of the doctor, all the injuries were simple and were caused by fire arm. Duration of these injuries was found to be 3 1/2 days which is corresponding to the date of incident.

The post mortem examination of the dead body of Onkar Singh son of Sher Singh was conducted by Dr. Pradeep Kumar. P.W.7 on 23.3.1980 at about 5.15 a.m. Following ante mortem injuries were found on his person:

Gun shot wound of entry on left nipple 1" x 1" x chest cavity deep. margins inverted, blackening and tatooing present around the wound part of lung coming out of the wound.

Abrasion 3" x 1" on the top of left shoulder.

Abrasion 1" x V2" on the right elbow.

Abrasion 2" x 1" on the right iliac spine region.

Abrasion 1 V2 "x V2" on left iliac spine region.

Abrasion 3" x 1" x on upper part of right leg.

Abrasion %" x v*" on middle part of left leg.

Abrasion 2" x 1" on the right side of back.

Superficial burn on left side of chest and abdomen.

On the internal examination, 3rd, 4th, 5th, 6th, 7th, ribs on the left side were found fractured. In the right lung 800 ml. of dark bood and 12 pellets were recovered. Left lung was lacerated and 8 pieces of wadding were recovered. In large intestine gases and faecal matters were found. In the opinion of the doctor, death had occurred due to shock and haemorrhage due to ante mortem injuries and duration of death was 3/4 day to one day.

Four persons namely Omvir, Ahmad Saeed, Mohd. Shafi and Suresh who were arrested by the police on 25.3.1980 in connection with a crime u/s 307 IPC and confessed in the present crime, were subjected to test identification on 17.5.1980. The test identification was conducted by P.W.8 Fasiuddin. In the test identification informant Jalsur identified all the above four persons without committing any mistake. Similarly Bani Singh P.W.4 identified them without committing any mistake. Three other witnesses namely Roshan Singh, Shishupal and Hukum Singh also participated in the test identification of the culprits. Out of them Roshan Singh rightly identified Omvir and Suresh and committed two mistakes, Sishupal rightly identified Omvir and Mohd. Shafi and committed one mistake. Hukum Singh could not identify any of the aforesaid four persons. Thus against appellant Mohd. Shafi the Investigating Officer found two good identifying witnesses besides two partly good witnesses.

On the basis of above evidence, S.O. N.P. Singh P.W.6 submitted charge sheet against Bira, Tara and Onkar whereas against Mohd. Shafi and the deceased appellants, charge sheet was submitted by next officer S.I. Kusum Lata.

The defence taken by Bira, Tara and Onkar was that they had been falsely implicated by informant on account of enmity whereas the stand taken by Mohd. Shafi was that he has been falsely implicated by the police on account of enmity with him.

In order to bring home the charge, the prosecution examined 11 witnesses in all. Out of them Jalsur, P.W.2, Shishupal P.W.3 and Bam Singh P.W.4 are the alleged eye witnesses. Jalsur is the first informant while Shishupal is his real uncle and witness Bani Singh is his ''Khandani'' uncle. All these witnesses had tried to support the prosecution version. Jalsur PW-2 narrated the entire incident as mentioned in the FIR and claimed that he had seen Bira, Tara and Onkar alognwith his companions whom he did not recognise scuffling with the deceased Onkar son of Sher Singh who was also fired at on account of which he died on the spot. He stated that he had set fire lo ''Chhappar'' in front of his house, which made sufficient light. In the light of ''Chappar'' fire he and the witnesses had identified Bira, Tara and Onkar. He also deposed before the trial court that some of the culprits climbed on the roof and opened fire on them while their companions jumped in side the house and opened fire with a view to get the doors of the house opened and they also made firing in the room through ventilator causing injuries to Tarawati and Chandra Bose. Before the trial court this witness also identified the appellant Mohd. Shafi as one of the culprits and stated that he had seen him in the incident and identified him at the time of test identification parade. He denied the fact that he knew Mohd. Shafi from before. He also clearly denied the fact that the incident was an abortive attempt of dacoity and clearly stated that neither any property was looted from his house nor culprits were looking for the property.

The statement of Jalsur P.W.2 is duly corroborated by the statement of P.W.4 Bam Singh whose house was at a space of three houses from the house of the informant. His presence on the spot is very natural and probable. There is no doubt that the incident had taken place in the night where firing was resorted to and Onkar son of Sher Singh was fired at whereas Chandra Bose and Tarawati received injuries. In such circumstance, gathering of villagers near the place of occurrence is very natural and probable. The Investigating Officer had also found ash of burnt ''Chappar'' on the spot. There was sufficient light and the witnesses had opportunity to see the miscreants. He also stated unequivocally that amongst the miscreants he had identified Bira, Tara and Onkar who were duly armed with fire arm. He clearly stated that this incident was committed not with a view to make any loot but was intended to commit murder. He had also identified Mohd. Shafi and others in the court as persons who had participated in the crime. Nothing significant could be taken out from his testimony m the cross examination by the defence.

Similarly the statements of above two witnesses have been corroborated by the statement of P.W.3 Shishupal whose house is at the distance of four houses from the house of the informant. This witness is blind from one eye but can fully and properly see from second eye. He also reached the place of occurrence on hearing the alarm and had seen the same from near Chabutra of informant''s house. He named Bira, Tara and Onkar who were armed with fire arm and stated that they were accompanied by their companions duly armed with lathi, Ballam and fire arm. He denied the suggestion that it was an incident of dacoity. He confirmed the fact that Onkar son of Sher Singh was done to death by the miscreants who were scuffling with him and also opened fire. This witness is real uncle of informant but the defence could not take out any significant statement from him which may render his testimony doubtful.

Testimony of these witnesses gets corroboration from the statement of P.W.1 Dr. D.P. Singh who had examined injuries of Chandra Bose and Tarawati on 23.3.1980 at PHC Harduwaganj. Subsequently on 26.3.1980 the witness had also examined Mohd. Shafi on whose person, three and half days old fire arm injuries, similar in nature as were found on the person of Chandra Bose and Tarawati. were found.

Statement of Dr. Pradeep Kumar P.W.6 who had conducted post mortem examination on the body of Onkar son of Sher Singh further corroborates the above evidence. He had found a gun shot injury on the chest of the deceased with blackening and tattooing around it Significantly there was also superficial burn injury on left side of chest and abdomen. This fully corroborates the FIR that miscreants before leaving the place of occurrence had thrown Onkar son of Sner Singh in the fire of ''Chappar''.

Rest of the witnesses examined by the prosecution are P.W.5 Bhagat Singh constable who had carried the dead body for autopsy, P.W.6 SI N.P. Singh, Investigating Officer, P.W.8 Sri Fasiuddin who had conducted test identification parade on 17.5.1930, P.W.9 constable Karan Singh who had registered the case at the police station and deposed that Mohd. Shafi and other accused arrested on 25.3.1980 were kept Baparda in the police station. P.W 10 Kaptan Singh and P.W.11 Hukum Singh are also formal witnesses who had stated that Mohf. Shafi and others arrested on 25.3.1980 were kept and moved Baparda from one destination to the other.

N.P. Singh P.W.6 who is the investigating officer has stated that on 25.3.1980 he had apprehended Mohd. Shafi and three others in the case u/s 307 IPC and they confessed their involvement in the present crime and therefore they were kept Baparda. He also stated that he found from the place of occurrence seven empty shells of cartridges fired in the incident and collected ash of ''Chappar'' which had been set to fire by the informant. He also stated that village Harduwa to which Mohd. Shafi belonged is four kilo meters away from village Kidhara. In his statement also the defence could not elicit out any thing material Sri Fasiuddin P.W.8 is the Executive Magistrate. He proved the test identification memo prepared by him.

On the basis of the aforesaid evidence the trial court found the charges proved and convicted the appellants in the manner stated in the beginning of the judgment. No oral evidence was led by the defence.

We have heard Sri P.N. Misra, Senior Advocate assisted by Sri Apul Misra and Sri Ram Babu Sharma, advocates appearing on behalf of the appellants, the State has been represented by Ms. Usha Kiran, AGA. We have gone through the entire evidence on record.

The first argument raised by Sri Mishra was that it is an incident of abortive attempt of dacoity which has been given colour of murder and the persons inimical to the first informant have been implicated in this case. After carefully examining the entire evidence in the light of argument we find that there is absolutely no evidence to suggest that the miscreants had any intention to commit dacoity. Not a single article was stolen from the house of the informant. To the contrary it has come in the testimony of witnesses that miscreants were declaring that no one would be left alive and were exhorting one another to eliminate all. Sri Mishra drew attention of the court to a note recorded by P.W.8 Sri Fasiuddin in the identification memo wherein with reference to informant Jalsur it had been recorded that he stated to have gone for identifying the persons who had committed dacoity and murder. Jalsur has disclaimed this statement. The remaining four identifying witnesses had clearly stated before the magistrate that they had come to identify the persons who had killed Onkar son of Sher Singh. We are therefore of the opinion that endorsement made by Sri Fasiuddin P.W.8 with regard to Jalsur has no significance and it can not be inferred that miscreants intended to commit dacoity. To the contrary circumstances showed the intention of miscreants to eliminate their target.

Admittedly there was enmity between the two sides and the prosecution evidence has clearly established motive for the commission of the crime in which Tara, Mahabir and their father Munshi had been convicted u/s 307 IPC for making an attempt on the life of P.W.3 Shishupal. Their appeal had also been dismissed by the High Court although the sentence was reduced to two years. This was immediate motive while evidence indicates that there was other incident also providing motive for commission of crime. Jalsur stated that Onkar, Bira and Tara are ''Khandani'' of each other and in fact he claimed that even he himself belonged to their khandan. From the evidence on record we find it established that there was sufficient motive for the commission of crime.

FIR was promptly lodged within three hours. Bira, Tara and Onkar were named accused. FIR does not give any indication that miscreants had any intention to commit any dacoity. Thus prompt FIR containing the names of Bira, Tara and Onkar with specific role attributed to them is strong piece of corroborative evidence against them.

As mentioned earlier nothing could be elicited from the statements of the eye witnesses by the defence which coula render their testimony unreliable. Bira, Tara and Onkar were named by all the witnesses. We therefore find that their conviction has been rightly recorded by the trial court.

So far as Mohd. Shafi is concerned, the evidence on record clearly shows that he was identified in the court as well as in the test identification parade by two good witnesses i.e. Bani Singh and Jalsur. These witnesses had not committed any mistake. Identification parade was held after 51 days. There was therefore no undue delay in conducting the same. There is nothing on record to show that Ram Singh and Jalsur had known Mohd. Shafi from before or had any occasion to know him. Their testimony that they had seen them for the first time in the course of incident and second time in the jail can not be doubted. In addition to this involvement of Mohd. Shafi in the crime is also indicated from the circumstances that when he was apprehended by the police on 25.3.1980 he was carrying fire arm injuries on his person. He was sent for medical examination at PHC Harduwaganj where Dr. D.P. Singh P.W.1 on 25.3.1980 found several injuries of the pellets of gun fire which are mentioned in Ex.ka-8 referred to earlier in this judgment. Significantly the circular fire arm wounds found on the person of Mohd. Shafi were similar in nature as were found on the persons of Tarawati and Chandra Bose who had been examined on 23.3.1980. The duration of injuries found on Mohd. Shafi also conformed to the time of incident. There is no credible evidence to show that he was shown to the witnesses before being subjected to test identification. We therefore hold that appellant Mohd. Shafi was also involved in this incident and the trial court rightly convicted him.

Sri Mishra then pointed out that appellant No. 1 Bira was a minor at the time of alleged incident and in accordance with provision of U.P. Children Act of 1951 he can not be sentenced to imprisonment for the offence committed during his childhood. It has been argued that since now Bira has become major, the only course open to the court while maintaining conviction would be to set aside the sentence passed on him. In support of his argument, learned Counsel has placed reliance on the case of Jayendra and Anr. v. State of Uttar Pradesh reported in AIR 1982 up 685.

A perusal on record would show that appellant Bira had given his age in his statement u/s 313 Cr.P.C. as 15 1/2 years on 19.3.1982. The observation of trial Judge available as an endorsement made on the statement given by the accused was that accused Bira was above 17 years of age. No other material has been brought to our notice giving any indication of the age of accused Bira. In view of this even if we rely on the observation made by the Sessions Judge. Bira was less than 18 years on 19.3.1982. The present incident took place on 23.3.1980. Therefore on the date of incident he was less than 16 years of age.

Consistent view of Apex court expressed in the cases of Santenu Mitra Vs. State of W.B., , Bhola Bhagat v. State of Bihar AIR 1998(1) SC 236 and Gopinath Ghosh Vs. The State of West Bengal, is that hyper technical approach should not be adopted while considering the claim of accused that he is juvenile. The U.P. Children Act was a beneficial legislation and therefore liberal interpretation should be given to its provisions. The provisions of the Act are however mandatory.

u/s 2(4) of U.P. Children Act 1951 a child has been defined as a person under the age of 16 years. The Apex court has already set at rest the controversy relating to relevant date for the purpose of considering the liability in the case of commission of offence. In Pratap Singh v. State of Jharkhand Judgment Today, 2005(2) SC 271 it has been held that for the purpose of granting benefit to a juvenile accused, the relevant date for determination of age is the date of delinquency and not the date of trial or hearing of appeal.

Section 27 of U.P. Children Act provides that notwithstanding anything to the contrary in any law, no court shall sentence a child to imprisonment for life or to any term of imprisonment. Section 2 provides, in so far as it is material, that if a child is found to have committed an offence punishable with imprisonment, the court may order him to be sent to an approved school for such period of stay as will not exceed the attainment by the child of the age of 18 years.

In the instant case appellant Bira was a child within the meaning of section 2(4) of U.P. Children Act 1951 and now after 27 years of the incident there is absolutely no justification for sending him to a reformatory school. In similar situation the Apex court in Jayendra case (supra) upheld the conviction but the sentence of imprisonment imposed upon the accused who was a child on the date of delinquency but had become major by the time his appeal, was decided was set aside we are of the opinion that similar treatment can be given to the appellant Bira in this case.

In view of the observations made above, the conviction of appellants Bira, Tara, Onkar and Mohd. Shafi as recorded by the trial court is confirmed. The sentences passed on them except on Bira are also confirmed. With regard to Bira appellant, in view of discussion made above, the sentence of imprisonment passed on him is quashed while conviction remains intact. Bira''s appeal to that extent is allowed and appeal of other appellants is dismissed. The appellants are on bail. Bail of Tara, Onkar and Mohd. Shafi is cancelled. They shall be taken into custody to serve out the sentence. Bira need not surrender Let a copy of this judgment be certified to the trial court for necessary action.