Chandan and Another vs State of U.P.

B.N. Shukla, J.—This appeal is directed against the judgment and order dated 8.4.1982 passed by Session Judge, Hamirpur in S.T. No. 2 of 1981 State v. Chandan and Ors. u/s 302/34 IPC relating to P.S. Rath, District Hamirpur whereby convicting the accused Chandan and Devi Dayal u/s 302 IPC and sentencing them to undergo imprisonment for life.

The prosecution case in brief is that on 5.9.1980 at 10:00 AM Swami Deen (the Informant) was sitting on the Chabutara of his house and was talking with Nripat. His son Ram Sahai was returning home and when he reached in front of the cattle shed of Satti Deen then both the accused Devi Dayal and Chandan emerged out his cattle shed and challenged Ram Sahai. Both fired shot with pistol at Ram Sahai. Ram Sahai shouted for help and after running 15-20 paces he fell down on the ground near the Neem tree. Thereafter accused Devi Dayal gave blow with butt of his pistol at the mouth of Ram Sahai. The motive has been given that one month prior to the occurrence the accused persons had abused and beaten Ram Sahai and at about 11/2 years back Ram Sahai had molested sister-in-law of accused Chandan in respect of which a Panchayat was convened and as decided by the Panchayat, the sister-in-law of accused Chandan had given shoe beating to the deceased Ram Sahai.

Swamidin (PW-1) got the FIR lodged at the police station Rath and Head constable Shyam Lal Dixit (PW-6) registered the FIR (Ex Ka-4) on the basis of written report (Ex Ka-2) submitted by Swamidin. He made entry in the G.D. (Ex Ka-5).

S.I. Ram Ashish Singh (PW-8) took over the investigation of the case. He visited the spot of occurrence and conducted the inquest on the dead body of Ram Sahai and prepared inquest report (Ex Ka-7) and relative papers (Ex Ka-9 and 10). He handed over the dead body in the sealed condition with the relative papers to the constable Ram Chandra and Shiv Pal Singh for postmortem. He collected blood stained and plain earth from the spot and prepared memo (Ex Ka-11). He also prepared the site plan (Ex Ka-2).

Dr. A.K. Srivastava (PW-7) conducted postmortem on the dead body of Ram Sahai on 6.9.1980 at 12:30pm and found the following ante mortem injuries:

Nine gun shot entry wound each 1 cm x 1 cm on left side of back in area 10 cm x 7 cm in size. 9.5 cm below superior Angle of left scapular. Clots present.

Two gun shot exit wounds each 1 cm x .5 cm in right anterior axillary line 2.5 cm below anterior axillary fold. Clots present. Injury No. 2 communicating with injury No. 1.

Five (5) pellets are palpable in right side of chest in area 8 cm x 5 cm just above right nipple, all pellets found and sealed.

Lacerated wound 1.5 cm x .3 cm on right side of face 2 cm below lobule of right ear. Clots present.

Lacerated wound 2 cm x 1 cm on right side of face, 1 cm below injury No. 4. Clots present.

In internal examination he found pleura, right lung, left lung, pericardium lacerated and congested. Stomach was found empty and perforated two places. Small and large intestine partly filled. Doctor opined that death could be caused due to shock and haemorrhage. He prepared postmortem report (Ex Ka-6). He gave opinion that the death of the deceased may be caused on the date and time as alleged by the prosecution.

S.I. Kripal Kuril (PW-4) is the second Investigating Officer. He took over investigation on 6.9.1980 and after completing the investigation submitted charge-sheet (Ex Ka-3) against the accused persons.

After commitment of the case to the Court of Session the trial court charge the accused Chandan and Devi Dayal u/s 302/34 IPC. Accused persons pleaded not guilty and claimed to be tried.

In order to bring home charge against the accused persons, prosecution examined 8 witnesses in all, out of which Swamidin (PW-1) is the informant and father of the deceased and is an eyewitness, Smt. Rampat Rani (PW-2) is the widow of deceased and is an eyewitness and Nripat Singh (PW-3) is an eyewitness. Rest witnesses are formal in nature.

Accused persons in their statements u/s 313 Cr.P.C. have denied their involvement in the occurrence and claimed that they have been falsely implicated in this case. They did not examine any witness in defence.

The trial court after appreciating the entire evidence led by the prosecution recording finding of conviction and sentence the appellants. Hence the present appeal.

We have heard Sri Satish Trivedi, learned Senior Counsel and Sri Shashadri Trivedi, learned Counsel for the appellants, Sri A.N. Mulla, learned A.G.A. for the State and gone through the record.

Learned Counsel for the appellants has submitted that the appellants were below 18 years on the date of alleged occurrence and they were juvenile and are entitled to get benefit of Section 20 U.P. Juvenile Justice (Care and Protection of the Children), Act 2000 as amended in year 2006. It is further submitted that eyewitnesses are not reliable and have not seen the occurrence and the incident had taken place in the early hours and the assailants could not be identified. It is also submitted that the deceased was of bad character and his stomach was found empty which supported the defence case that he was murdered in the wee hours and medical evidence contradicts ocular evidence.

Learned A.G.A. has not disputed the legal position so far as the applicability of Section 20 Juvenile Justice (Care and Protection of the Children) Act, 2000 is concerned but has submitted that the medical evidence supports the ocular evidence and the trial court has rightly convicted and sentenced the appellants.

In this case the prosecution has examined 3 eye witneses. Swamidin (PW-1) is father of the deceased and is maker of the FIR. He has deposed that both the accused are friends and at the time of occurrence he was sitting on Chabutara in front of his house and was talking with Nripat and his wife and daughter-in-law were going to fetch water from the well. He further deposed that his son Ram Sahai was coming to his house and when he reached near cattle shed of Sattidin then the accused appeared, challenged him and fired shots at him and after running 15-20 paces he fell down near the Neem tree thereafter Devi Dayal hit him by butt of the pistol on his mouth. From his cross-examination it emerges that Ram Sahai was convicted in robbery case by the trial court at Hamirpur but he was acquitted in the appeal by the High Court. His involvement in other cases is not proved but in FIR it is mentioned that 11/2 year prior to the occurrence the deceased molested sister-in-law of accused Chadan and a Panchayat was convened and as was decided by the Panches, sister-in-law of Chandan had beaten him with shoes. During cross-examination this witness had admitted it. He also filed the FIR (Ex Ka-1) which was lodged by the deceased against accused Chandan, Devi Dayal and Kanhiyya Lal in respect of occurrence which had taken place on 4.8.1980 at about 4:00pm registered u/s 323/427 IPC with the allegations that the accused cattle were grazing in his field and when he objected then he was beaten by the accused and when he wanted to send the cattle to the cattle pound then the cattle were taken away forcibly by the accused persons. It shows previous enmity with the accused persons. During cross examination this witness has also deposed that accused had fired shot on Ram Sahai and the fires were shot at from 4-5 paces and the deceased was running and accused were chasing him and after about 15-20 paces the deceased fell down.

Smt. Ram Rati (PW-2) is the wife of the deceased. She has deposed that at the time of occurrence she was going to fetch water from the well along with her mother-in-law and witnessed the occurrence. She deposed that accused persons fired shot at her husband and when he fell down then the accused Devi Dayal hit at his mouth by butt of the pistol. She has corroborated her father-in-law Swamidin in material particulars. She has also deposed that fires were shot at from 3-4 paces and at that time her husband was running and he was being chased by the accused persons. Although she has deposed that no Panchayat was convened in the village and her husband was not involved in molesting but it appears that she is not disclosing this fact simply to prove that character of her husband was good but merely on this ground her testimony can not be disbelieved. So far as the witnessing of occurrence is concerned she has fully supported the prosecution case.

Nripat Singh (PW-3) is an eyewitness who was present at Chabutara of Swamidin. Although he is son of Duli Chand who is brother of the informant Swamidin yet this is no ground to disbelieve his testimony. His presence on the spot can not be doubted. He has given detail account of the occurrence and has also explained that Swamidin had given a portion of another house which was being used for teethring the cattle to his another son Sahab Singh. He has deposed that fire was shot at from 4-5 paces.

Dr. A.K. Srivastava (PW-7) had conducted the postmortem on the dead body of the deceased. He opined that the death could be caused on 5.9.1980 at about 10:00am and the ante mortem injuries were sufficient in the ordinary course of nature to cause death. Injury Nos. 4 and 5 are lacerated wounds which could be caused by blunt side of the country made pistol. In ante mortem injury No. 1 nine gun shot wound of entry has been found and No. 2 was communicating with injury No. 1. Five pellets were palpable in right side of chest above right nipple and the pellets were found and sealed. It shows that the deceased was murdered with fire shots and injury No. 4 and 5 were caused by blunt side of the country made pistol.

We do not appreciate submission of the learned Counsel for the appellants that the deceased was murdered in the early hours and assailants could not be identified because eyewitnesses have deposed that the occurrence has taken place at 10.00 AM and the Investigating Officer Sri Ram Ashish Singh (PW-8) has deposed that around the place of occurrence there is abadi site. It has also come in evidence that the deceased had gone without taking any food and this fact has been testified by Smt. Ramrati, wife of the deceased. The defence has failed to prove that the deceased was murdered somewhere else and the body was brought and kept on the spot as shown by the I.O. Ram Ashish Singh (I.O.) himself has recovered blood stained and plain earth from the spot and prepared memo (Ex Ka-11).

Swami Nath who is father of the deceased has mentioned in the FIR that the deceased had molested sister-in-law of accused Chandan and even he was punished by sister-in-law of Chandan in the Panchayat. It shows that the character of the deceased was not good but the evidence given by the eyewitnesses clearly shows that the deceased was murdered by the accused persons and this fact finds support from the medical evidence also.

Considering the entire evidence adduced by the prosecution we are of firm opinion that the trial court has rightly convicted the accused persons.

21.Learned Counsel for the appellants has submitted that in statement of the accused persons recorded u/s 313 Cr.P.C. age of the accused persons has been shown 16 years. The statements were recorded on 25.2.1982 and the occurrence relates to 5.9.1979 and on the date of occurrence the accused were below 18 years and as per Provision of Section 20 of the Juvenile Justice (Care and Protection of the Children) Act, 2000 they are entitled to get benefit.

(a) Learned A.G.A. has not disputed this legal position that during pendency of appeal/revision the accused persons are entitled to get benefit of Section 20.

(b) The trial court while hearing on the sentence has mentioned that the accused are young boys. Their age has been shown 16 years while recording their statements u/s 313 Cr.P.C. There is no dispute that they were below 18 years at the time of occurrence.

(b) The Juvenile Justice Act, 1986 was enforced with statement of object and reasons. The provisions came into force in different parts of the country which replace the corresponding law on the subject such as the Children Act and other enactments on the subject. Thereafter the Juvenile Justice (Care and Protection of the Children) Act, 2000 was introduced repealing the entire Act of 1986. This Act was further amended by the Amendment Act, 2006 and the Juvenile Justice Rules 2007. The very scheme of the Act is rehabilitatory in nature. Juvenile Justice Act, 1986 was dealing with children upto 16 years of age but Amending Act 2000 prescribes the age on the date of commission of offence below 18 years (i.e. who has not completed age of 18 years) Section 2(k) of the Act defines a Juvenile or Child as a person who has not completed eighteenth years of age. Section 2(I) defining "Juvenile in conflict of law" has since been amended in 2006 and now it provides that age at the time of commission of offence is relevant.

(c) As amended, Section (I) reads:

2(I) "Juvenile in conflict with law" means a Juvenile who is alleged to have committed an offence and has not completed eighteenth years of age as on the date of commission of such offence.

Section 20 and 64 of J.J.A. (Juvenile Justice) Act, 2000 were amended in 2006 and a proviso and an Explanation were added to each.

Proviso and the Explanation of Section 20:

Provided that the Board may, for any adequate and special reason to be mentioned in the order, review the case and pass appropriate order in the interest of such juvenile.

Explanation- In all pending cases including trial, revision, appeal or any other criminal proceedings in respect of a juvenile in conflict with law, in any court, the determination of juvenility of such a juvenile shall be in terms of Clause (I) of Section 2, even if the juvenile ceases to be so on or before the date of commencement of this Act and the provisions of this Act shall apply as if the said provisions had been in force, for all purposes and at all material times when the alleged offence was committed.

Proviso and the Explanation to Section 64 read as follows:

Provided that the State Government, or as the case may be the Board, may, for any adequate and special reason to be recorded in writing, review the case of a juvenile in conflict with law undergoing a sentence of imprisonment, who has ceased to be so on or before the commencement of this Act, and pass appropriate order in the interest of such juvenile.

Explanation- In all cases where a juvenile in conflict with law is undergoing a sentence of imprisonment at any stage on the date of commencement of this Act, his case including the issue of juvenility, shall be deemed to be decided in terms of Clause (I) of Section 2 and other provisions contained in this Act and the rules made thereunder, irrespective of the fact that he ceases to be a juvenile on or before such date and accordingly he shall be sent to the special home or a fit institution as the case may be, for the remainder of the period of the sentence but such sentence shall not in any case exceed the maximum period in Section 15 of this Act.

(d) A simple reading of Section 20 shows that it applies if the following conditions are fulfilled:

The accused was less than 18 when he committed an offence;

His case is pending at trial, revision, appeal or other criminal proceedings.

The Government of India notified the Model Rules, 2007 for "better implementation and administration of the provisions of the said Act in its true spirit and substance" and made them applicable mutatis mutandis to all States till new Rules were framed by the State. The amended section further lays down that when such rules are framed, they are binding on the State Government till it frames its own rules conforming to the Model Rules.

With regard to pending cases, Rules 97(1) and (2) of the Model Rules, 2007 clearly direct that:

Pending cases-(1) No juvenile in conflict with law or a child shall be denied the benefits of the Act and the rules made thereunder.

(2) All pending cases which have not received a finality shall be dealt with and disposed of in terms of the provisions of the Act and the rules made thereunder.

In this connection it may be pertinent to examine Section 1(4) of JJA, 2000 (after its amendments) which reads thus:

1.(4) Notwithstanding anything contained in any other law for the time being in force, the provisions of this Act shall apply to all cases involving detention, prosecution, penalty or sentence of imprisonment of juveniles in conflict with law under such other law.

This provision should lay at rest the controversy relating to applicability of JJA, 2000 to children charged with commission of offences under special laws with exclusive applicability clause.

In Hari Ram v. State of Rajsthan and Ors. JT 2009 (8) SC 47 the Apex Court has considered Aims and Ojbects of Juvenile Justice (Care and Protection of the Children) Act, 2000 and has held that the very scheme of the Act is rehabilitatory in nature and not adversial which the courts are generally used to. The implementation of the said law, therefore, requires a complete change in the mind set of those who are vested with the authority of enforcing the same, without which it will be almost impossible to achieve the objects. (Emphasis laid).

Hari Ram (Supra) has cleared the confusion created by many judgments given since the amendment of JJA in 2006.

Considering legal position regarding "Juvenile" we are of opinion that accused appellants were below 18 years on the date of alleged occurrence.

As far as determination of age is concerned, in normal circumstances we would have referred the matter to the trial court but as discussed above, the age of the appellants has already been recorded by the trial court. It is an appeal of 1982 and occurrence relates to year 1980, certainly the appellants were below 18 years at the time of the incident.

In Satish @ Dhanna Vs. State of M.P. and Others, it was observed by the Apex Court that Section 20 of the Juvenile Justice (Care and Protection of Children) Act, 2000 provides for special provision in respect of pending cases. The accused who was juvenile cannot be denied the benefit of provision.

Appeal is a continuous proceeding and Section 20 is made applicable to the pending appeal hence in the interest of justice we would have no option but to modify the sentence awarded to the convicts. Keeping in view the procedure adopted by the Apex Court in case Satish alias Dhanna (Supra) sentence of appellants Chandan and Devi Dayal is liable to be modified to the period already undergone in jail.

Appeal is dismissed. Finding of conviction recorded by the trial court is affirmed by us but sentence of the appellants is modified to the period already undergone in jail. Appellants are on bail. Their bail bonds are cancelled and sureties discharged. They need not surrender.