Chandra Pal vs State of U.P.

Surendra Vikram Singh Rathore, J.—Heard Shri R.N.S. Chauhan, learned counsel for the appellant, and Shri Umesh Chandra, learned AGA for the State.

Instant appeal has been preferred by appellant Chandra Pal challenging the judgment and order dated 30.06.1986 passed by Special Judge, Unnao, in Sessions Trial No. 366 of 1984 arising out of Case Crime No. 106 of 1983, Police Station Bihar, District Unnao, whereby appellant Chandra Pal was convicted for the offence under Section 302 IPC and was sentenced to undergo imprisonment for life. However, co-accused persons namely Satya Narain, Ram Salone and Sripal, who were also tried along with the present appellant, were acquitted of the charges levelled against them.

Before proceeding further in this matter, it is pertinent to mention here that during pendency of the instant appeal appellant Chandra Pal claimed himself to be juvenile on the date of incident and moved an application under Section 7-A of the Juvenile Justice (Care & Protection Act, 2000, for declaring him to be juvenile. Under the orders of this Court, the matter for determination of his age at the time of incident was referred to Juvenile Justice Board, Unnao. The concerned Juvenile Justice Board vide its order dated 24.07.2015 declared the appellant as juvenile on the date of incident i.e. 07.10.1983. He was declared juvenile on the basis of his date of birth mentioned in the mark sheet of high school examination 1983 wherein his date of birth was recorded as 25.11.1965.

In brief, the case of the prosecution was that the deceased Sukh Lal was the son of the complainant Uma Shankar Yadav. The complainant had heaped his Ghoora (compost) on his own piece of land near the well in his village. About 15 days'' prior to the occurrence, Satya Narain had also put his Ghoora (compost) on the said land, which resulted in the exchange of abuses between Uma Shankar Yadav, the complainant, and accused Satya Narain. Satya Narain had threatened the complainant with dire consequences. On 06.10.1983, the accused again put his Ghoora (compost) on the said land which again resulted into altercation between the complainant and the accused. On the next day i.e. 07.10.1983 in the morning informant Uma Shankar Yadav accompanied with his son Sukh Lal had gone to the house of his uncle Sripal situated in the same village. At about 07.30 AM when these persons were sitting under thatch in front of house of their uncle, accused Satya Narain armed with lathi, appellant Chandra Pal armed with gun, Ram Salone armed with country made pistol and accused Sri Pal armed with Farsa suddenly came out of the house of accused Satya Narain, which was adjacent to the house of Sri Pal where the deceased and the complainant were sitting. All the accused persons abused the informant and surrounded them. In order to save their life, the complainant and his son Sukh Lal started running from there but appellant Chandra Pal fired from his gun on Sukh Lal causing injuries to him and because of the said injuries, he died on the spot. The incident was witnessed by PW-2 Darshan, Binda, Manna and others who reached the place of occurrence hearing the hue and cry raised by the informant and his son. The accused persons thereafter ran away from the place of occurrence. The complainant Uma Shankar Yadav got the first information report of this case scribed by Ramesh Chandra Yadav and submitted the same at the police station Bihar on the same day at 11.25 AM which was situated at a distance of about 7 miles from the place of occurrence.

After registration of the case, the investigation started. The police came to the place of occurrence, prepared inquest report and after sealing the dead body, the same was sent for postmortem.

The postmortem on the dead body of the deceased was conducted on 08.10.1983 at 03.10 PM and the following ante-mortem injury was reported by the doctor:--

"Wound of entrance by firearm, size 6 cm x 4 cm x cavity deep on the left side of chest, just below the nipple. Margins of the wound lacerated-inverted, surrounding skin of the wound scorched, blackened and tattooed. Direction of the wound from forward to backwards-slightly upwards.

On opening of the wound:-- 4th and 5th left ribs are fractured and thoracic cavity containing about 1/2 litre blood and 38 small shots and two waddings are recovered from thoracic cavity.

On internal examination doctor found left lung, lacerated, stomach containing undigested food, small intestine empty, and faecal matter in large intestine.

According to the doctor Sukh Lal had died due to shock and haemorrhage as a result of firearm injury on 07.10.1983 at about 7.30 AM."

After completing the investigation, charge sheet was filed against all the four accused persons named in the first information report.

According to the suggestions put by the accused persons during trial and the statement under Section 313 Cr.P.C., the case of the defence was of total denial and their false implication due to enmity.

In order to prove its case, the prosecution has examined PW-1 Uma Shankar Yadav - informant and father of the deceased Sukh Lal, PW-2 Darshan - an eyewitness named in the first information report, PW-3 Head Constable Prem Shankar, who has proved the Chik Report and GD of the registration of the case, PW-4 SI Ram Bharosey Shukla, who has investigated this case in part from 07.10.1983, PW-5 Dr. M.C. Gangwar, who has conducted the postmortem on the body of the deceased, PW-6 SI Inam Singh, the subsequent Investigating Officer of this case who had taken up the investigation from first Investigating Officer Ram Bharosey Shukla (PW-4), PW-7 Village Chowkidar Devi Charan who is a formal witness and is only carrier of the dead body for postmortem examination.

No evidence in defence was adduced.

After appreciating the evidence on record, learned trial court has convicted the appellant, as above, hence, the instant appeal.

Learned counsel for the appellant has submitted that he does not intend to challenge the conviction of the appellant and has restricted his arguments only on the point that since the appellant has been declared juvenile on the date of incident, therefore, for the purpose of sentence, the matter should be referred to the concerned Juvenile Justice Board. He has also submitted that the incident of this case had taken place in the year 1983 and now the age of the appellant, after lapse of about 32 years, would be about 49 years. So no fruitful purpose would be served by sending the appellant to remand home. In support of his submission, he has placed reliance on the pronouncement of Hon''ble the Apex Court in the cases of Vijay Singh Vs. State of Delhi, and Darga Ram Vs. State of Rajasthan .

Learned AGA has submitted that learned trial court has correctly appreciated the prosecution case and has recorded the finding of conviction of the appellant. The appellant has utterly failed to bring on record any ground of his false implication because of enmity and it is unbelievable that the father of the deceased would spare the real murderer of his son and would have falsely implicated the appellant because of the enmity. The evidence of the witnesses stands corroborated by the medical evidence.

Though the conviction has not been challenged by the appellant but being the Court of first appeal, we have gone through the entire evidence and the impugned judgment. PW-1 Uma Shankar Yadav and PW-2 Darshan are eyewitnesses of this occurrence. They have fully supported the case of the prosecution. Nothing material could be elicited in their cross examination to lend any support to the appellant. Perusal of the impugned judgment shows that other co-accused persons were granted the benefit of doubt and were acquitted. Perhaps the trial court has granted the benefit of doubt to co-accused persons as they were not assigned any specific role in this offence. Perusal of the impugned judgment shows that learned trial court has correctly appreciated the evidence on record. Minor inconsistencies in the evidence of even the truthful witnesses are bound to occur. Law is settled on the point that minor inconsistencies would not make a witness unreliable unless and until any contradiction or inconsistency is of such nature that goes to the root of the case. Minor inconsistencies would not be sufficient to discard the otherwise reliable testimony of the witness. The evidence of two eyewitnesses produced by the prosecution stands fully corroborated by the medical evidence. The time of the incident also stands corroborated by the opinion of the doctor. Thus, we are of the considered view that the prosecution was successful in proving its case against the appellant beyond reasonable doubt and the conviction need not be interfered with.

The appellant has been declared juvenile by the competent Juvenile Justice Board on the date of incident. So, the question of awarding sentence would come into play. On this point, Section 20 of the Juvenile Justice (Care & Protection) Act, 2000, is relevant which reads as under:--

Special provision in respect of pending cases.--Notwithstanding anything contained in this Act, all proceedings in respect of a juvenile pending in any court in any area on the date on which this Act comes into force in that area, shall be continued in that court as if this Act had not been passed and if the court finds that the juvenile has committed an offence, it shall record such finding and instead of passing any sentence in respect of the juvenile, forward the juvenile to the Board which shall pass orders in respect of that juvenile in accordance with the provisions of this Act as if it had been satisfied on inquiry under this Act that a juvenile has committed the offence.

[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 (1) 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.]"

The Act itself provides that if the Court finds that the juvenile has committed an offence, it shall record such finding and instead of passing any sentence in respect of the juvenile, forward the juvenile to the Board which shall pass orders in respect of that juvenile in accordance with the provisions of the Juvenile Justice (Care & Protection) Act. Thus, this Court has not been vested with the power to inflict appropriate sentence on a juvenile in conflict with law.

Learned counsel for the appellant on the point of sentence has placed reliance on the cases of Vijay Singh (supra) and Darga Ram alias Gunga (supra) wherein Hon''ble the Apex Court has directed release of the appellant after recording his conviction. But in the facts of the those cases, the appellant was found to be juvenile and was in custody at the relevant point of time. So in that perspective, Hon''ble the Apex Court directed the release of the juvenile even after recording his conviction. But in the instant case, the present appellant was on bail during trial and even at present, he is on bail. So, in our considered opinion, the appellant is not entitled for the benefit of the aforesaid cases. So, we consider it proper to forward the appellant to the concerned Juvenile Justice Board for awarding appropriate sentence in accordance with the provisions of Juvenile Justice (Care & Protection) Act, 2000.

Thus, this appeal is hereby dismissed. Conviction of the appellant Chandra Pal under Section 302 IPC is hereby confirmed. He is on bail. He is directed to surrender before the concerned Juvenile Justice Board within a period of 10 (ten) days from today, failing which, the concerned Juvenile Justice Board shall effect his arrest in accordance with law. Thereafter, Juvenile Justice Board shall proceed to pass appropriate sentence in accordance with the provisions of Juvenile Justice (Care & Protection Act) against the appellant Chandra Pal.

Office is directed to send lower court''s record to the concerned Sessions Judge forthwith who shall ensure that the record is produced without any further delay before the concerned Juvenile Justice Board to enable it to pass appropriate order on the point of sentence against the appellant.

Office is directed to certify the judgment to the court concerned and a copy thereof be also sent to the concerned juvenile justice board.