Dabbu @ Mahesh and Another vs State of U.P.

Rakesh Tiwari, J.—Heard Sri S. P. Srivastava holding brief of Sri P. K. Singh, counsel for the appellants, Sri R. A. Mishra, A.G.A. and perused the record of the case carefully. This appeal has been preferred by the appellants Dabbu alias Mahesh and Chaddu alias Shailesh, both sons of Sri Ram Sewak, resident of Saradamai, Police Station Bishungarh, district Auraiya, u/s 374(ii), Cr.P.C. The appellants have challenged the validity and correctness of the judgment and order dated 3.2.2003 passed by learned Sessions Judge. Kannauj in S.T. No. 404 of 2001, State v. Chaddu alias Shailesh and S.T. No. 404A of 2001, State v. Dabbu alias Mahesh, whereby, the accused-appellants have been convicted u/s 302 read with Section 34, I.P.C. and sentenced to undergo rigorous imprisonment for life.

Briefly stated the facts giving rise to the present appeal are that there was enmity brewed between the complainant Ram Nath and the accused appellants pursuant to the election of Pradhan in the village. On 11.6.2001 at about 6.30 p.m. when Sita Ram father of the complainant was standing near the corner of his orchard Dabbu and his brother Chaddu, sons of Ramdev, residents of Village Shardamai came armed with gun and country made pistol, they fired 3-4 shots upon Sita Ram with intention to kill. On hearing the sound of gun shot and cry of his father the complainant alongwith his son Munish and cousin Ram Swarup, son of Lalman came running on the site of occurrence other persons nearby also arrived there. Upon seeing them the accused made their escape good towards the agriculture fields in Northern side. The written report was submitted by Ram Nath at 7.45 p.m. to P. S. Bishungarh, district Kannauj stating that his father Sita Ram has succumbed injuries as a result of gun shots fired by the accused and his body was lying on the spot. The complaint was registered in the G.D. as Case Crime No. 31 of 2001 u/s 302, I.P.C. Police Station Bishungarh, district Kannauj against the accused-appellants Dabbu and Chaddu, sons of Ram Sewak. The investigation was conducted by Sri Sukhram Verma, Station Officer of the said police station. He visited the spot on 11.6.2001, but due to insufficient light inquest report could not be prepared. On 12.6.2001, the Investigating Officer again went to the place of incident and inquest report was prepared by Sub Inspector Natthan Singh under the direction of the Investigating Officer. He also prepared recovery memo regarding seizure of five empty 12 bore cartridges from the spot and samples of plain and blood stained earth from the spot in presence of public witnesses and also prepared the site plan. The body of the deceased Sita Ram was sent for post-mortem to the District Hospital. The post-mortem was conducted on 12.6.2001 by Dr. Anil Kumar Mishra, who submitted report stating that the deceased was 65 years of age; that rigor mortis had passed away from the upper part of the body but was present on its lower part and that death had occurred due to ante-mortem injuries on the body of the deceased in the post-mortem proved by him in his deposition were as under:

According to the doctor the death had occurred due to shock and haemorrhage as a result of ante-mortem injuries about a day before.

The charge was framed by the learned Sessions Judge on 31.8.2001 against the accused-appellants who denied the charges levelled against them and pleaded not guilty and claimed trial. In order to prove the charge the prosecution examined Ram Nath, P.W. 1. Ram Swarup, P.W. 2. Mahavir, scriber of chick report and G.D., P.W. 3, Sukhram Verma. Investigating Officer, P.W. 4 and Dr. Anil Kumar Mishra, P.W. 5. The accused Shailesh alias Chaddu and Mahesh Chand alias Dabbu also gave their statement u/s 313, Cr.P.C. denying the charges levelled against them admitted enmity with the complainant Ram Nath and his father Sita Ram regarding election which had developed in the past during the period of election of Pradhan in the village, but stated that they had been falsely implicated in this case. However, no defence witness was cross-examined by them.

The trial court found that the assailants who were real brothers, came to village Shardamai on 11.6.2001 with common intention armed with weapons to do away with Sita Ram. They fired upon him in the grove near his house where he was standing and he succumbed to the fire arm injuries keeping in vain that there were ocular witnesses of the incident and the enmity was admitted as well as considering the evidence on record accused Dabbu alias Mahesh and Chaddu alias Shailesh were found guilty of the offence punishable u/s 302 read with Section 34, I.P.C.

Assailing the judgment the contention of the learned counsel for the appellants is that there are material differences and contradictions in the prosecution story which were supported by evidence and in this background it cannot be said that the prosecution had established its case against the accused. The discrepancies beyond all reasonable doubts pointed out by the counsel for the appellants are:

� The place of occurrence is about 5 Kms. from the police station, which is evident from Ext. Ka-2 whereas in the inquest Ext. Ka-4. This distance has been noted as 3 Kms.:

� According to him it is evident from facts and circumstances that the F.I.R. is ante-timed:

� The witnesses of fact Ram Nath, P.W. 1 and Ram Swarup, P.W. 2 being cousins of the deceased are interested witnesses and no independent witnesses had been examined in the case.

Learned counsel for the appellants has argued that according to the prosecution story complainant, his son Munish and other persons nearby had come running on the spot but no other person had been shown as eye-witness of the incident and except the complainant and Munish no other person who were independent witnesses have been produced as witnesses before the trial court. He has also argued that the appellants have been falsely implicated and no independent witness has been examined by the prosecution in support of its case rather the witnesses are partisan witnesses and relatives of the deceased. It is next argued that the presence of Ram Nath, writer of the written report at the police station has not been shown in the G.D. which gives credence to doubt that he had not gone to the police station as alleged by the prosecution and the report is ante dated. Lastly, he has argued that the appellant Dabbu was a juvenile and in this regard he has placed reliance upon his age, which was recorded on 26.8.2003 when his statement u/s 313, Cr.P.C. was recorded. It is stated that since Dabbu was a juvenile on the date of alleged commission of crime, he should be examined by the Juvenile Justice Board.

On the basis of the documentary and oral evidence the trial court disbelieved the defence story recording a finding that Sri Ram Nath. the complainant had admitted that he had gone on foot to the police station for lodging the F.I.R. It had been clarified before the court that the distance of 5 Kms. shown in the F.I.R. is by road, which was laid in serpentine manner, but he went straightaway to the police station for lodging the F.I.R. through the agricultural fields by which the distance was reduced to 3 Kms. This fact is also supported by the evidence of the Investigating Officer. The accused persons could not bring out any evidence on fact against the aforesaid statement by the Investigating Officer as such the learned court below found that in the circumstances, the report after it was got written could have been lodged by covering a distance of 3 Kms.

The learned Sessions Court then proceeded with the query as to what benefit would be derived by the prosecution by anti dating the report by one or half day? It came to the conclusion that this would not have any effect on the direct ocular evidence...

As regards the other contentions of the learned counsel for the appellants, the trial court found that merely because the witnesses are related to the family of the deceased, their evidence cannot be out rightly discarded, but there should be strict examination of their evidence and conclusion should be drawn by the court by examining the credibility of the evidence led by the prosecution and that by applying this settled principle, of law, the evidence produced before the court fully brought home the guilt of the accused.

Examining the incident from this angle, the presence of the family members of Sita Ram deceased, who was killed in the grove, was beyond doubt. Their house was nearby, i.e., about 40-50 yards from the place of occurrence, as is evident from the judgment and site plan. There was no obstruction from where the witnesses were standing at ''B'' and the place of occurrence at ''A''. There was a clear vision without any obstruction from place shown in the site plan where Sita Ram was killed. It has come in the evidence of P.W. 1 and P.W. 2 that the accused had fired upon Sita Ram (deceased). The court noted that due to terror many ocular witnesses of the incident may not have had courage to accompany the complainant to the police station. The shocking impact of day light murder would differ from person to person. Every such act of violence is to be looked in the background of facts and circumstances of each case. Many a people do not have courage to enter into the witness box, particularly, in the cases of murder committed before their eyes where the assailants had threatened to kill anyone, who helps the deceased or his family or gives evidence against them. It was almost a broad day light murder, as in the month of June sun sets late in the evening. Therefore, if no other person came forward to accompany the complainant to the police station, this fact could not weaken the case of the prosecution.

The appellants could not establish that the family of the deceased and his cousin brothers, who were present on the spot was in any way unnatural. The place of occurrence was only about 40 yards from where the witnesses were standing near the door of the house. Any small discrepancy in the evidence may be due to perception due to state of mind of the witness when the crime is suddenly committed. The accused had fired 3-4 shots upon Sita Ram the witness is unable to give exact number of firearm shots fired at the target where indiscriminate firing is being made in the incident would not be fatal enough to washout direct ocular evidence. It has been proved by the prosecution that the accused persons had come with common intention armed with gun and country made pistol.

Though, there is some difference in the injuries recorded in the inquest report and in the postmortem but the post-mortem report is to be considered to be more accurate as body of the deceased is fully exposed to medical examination whereas some injury may not be discussed in the inquest report. The Investigating Officer is not an expert and sometime two injuries are so close that they seem to be only one. The Medical Officer, who had performed the post-mortem has clearly stated that gun shot wounds on the body of the deceased could be caused by four gun shots of fire arm. He also opined that there can be two gun shot injuries where a gun shot had entered. This statement of the medical officer has not been controverted by the accused. According to the opinion of the doctor the injury Nos. 3, 5 and 8 were sufficient to cause his death. Therefore, the Court rightly concluded that six gun shot wounds" of entry could be caused from 3-4 fire arms shots of the accused. The shots fired upon Sita Ram were from a distance of about 2-3 feet and, therefore, there was almost less dispersal.

As regards the question about the presence of Raj Kumar, writer of the written report at the police station is concerned, the court below has found that it is quite possible that he had gone to the police station, but had remained outside the police station, when the F.I.R., was being lodged by the complainant. Therefore, it is quite possible that his presence in the G.D. was not marked. The small contradiction said to be in the prosecution story cannot be termed vital or fatal in this case. It is a feeling glimpse of occurrence which is imprinted in the mind of the witnesses. What is his actual perception? what is his distance angle when he all of a sudden witness murder being committed and the light at the place of occurrence etc- are important factors. The state of mind in such circumstances depends from person to person and he could be able to testify only the part his brain has perceived. The incident in this case is said to have taken place at 6.30 p.m. As already stated earlier in the month of June, there was no paucity of light at the time of incident. Therefore, it cannot be believed that the accused persons could not be recognised by the witnesses from a distance of 40 yards. Particularly, when the accused persons were known to the complainant and his brothers from before. The incident is said to have been seen by a large number of persons, hence if the accused were not involved in the crime, any of them could have come forward to say that the accused persons have been falsely implicated but no witness has been produced by defence in their favour.

Emphasis has also been laid by the learned counsel for the appellants regarding the position of the body, but the court below has rightly found that the victim would naturally try to save himself. It is a natural stint in which by saving himself the gun shot may not hit at the same place. It has come in the ocular evidence of P.W. 1 and P.W. 2 that the accused had fired 3-4 shots upon Sita Ram and when he had fallen face down then again they fired two shots. Therefore, it is quite possible that while Sita Ram was dying, his body was not static and he breathed last turning up on his back.

We may now refer to the question raised during the course of arguments for the first time by the learned counsel for the appellants by way of an application stating therein that the appellant Dabbu was a juvenile on the date of occurrence and as such his case may be referred to the Board under Juvenile Justice (Care and Protection of Children) Act, 2000 (hereinafter referred to as the Act).

We have perused the application No. 270421 of 2012 filed on behalf of appellant No. 2.

It is argued by the learned counsel for the appellant that during the course of trial the statement of the appellant was recorded on 26.8.2002 u/s 313, Cr.P.C. in which he has claimed to be 19 years of age. It has been averred in paragraph-6 of the affidavit that the appellant was born on 1.7.1984.

Counsel for the appellants submitted that the alleged incident is said to have taken place on 11.6.2001 on which date the appellant No. 1 had not completed 18 years of age. He has relied upon Section 20 of the Juvenile Justice Act, that juvenility can be raised at any stage in any court. Therefore, in view of the aforesaid facts and circumstances, the Court be pleased to allow the application for determination of the age before the Juvenile Justice Board. Kannauj during pendency of the appeal before this Court.

We have also heard the learned counsel for the parties on this application.

We find that prior to 1.4.2001, the Juvenile u/s 2(k) was a child or a person who has not completed 18 years of age. By amendment dated 1.4.2001 the age was raised to be 18 years for a person to be a juvenile. In 2006, Section 7A has been inserted by Act No. 13 of 2006. It reads as under:

7A. Procedure to be followed when claim of juvenility is raised before any court.--(1) Whenever a claim of juvenility is raised before any court or a court is of the opinion that an accused person was a juvenile on the date of commission of the offence, the court shall make an enquiry, take such evidence as may be necessary (but not an affidavit) so as to determine the age of such person, and shall record a finding Whether the person is a juvenile or a child or not, stating his age as nearly as may be:

Provided that a claim of juvenility may be raised before any court and it shall be recognised at any stage, even after final disposal of the case, and such claim shall be determined in terms of the provisions contained in this Act and the rules made thereunder, even if the juvenile has ceased to be so on or before the date of commencement of this Act.

(2) If the court finds a person to be a juvenile on the date of commission of the offence under sub-section (1), it shall forward the juvenile to the Board for passing appropriate order, and the sentence if any, passed by a court shall be deemed to have no effect.

Rule 12 of the Juvenile Justice (Care and Protection of Children) Rules, 2007, provides procedure to be followed in determination of Age. For ready reference it is quoted below:

Procedure to be followed in determination of age.--(1) In every case concerning a child or a juvenile in conflict with law, the Court or the Board or, as the case may be, the Committee referred to in Rule 19 of these rules shall determine the age of such juvenile or child or a juvenile in conflict with law within a period of thirty days from the date of making of the application for that purpose.

(2) The Court or the Board or, as the case may be. the Committee shall decide the juvenility or otherwise of the juvenile or the child or, as the case may be, the juvenile in conflict with law, prima facie on the basis of physical appearance or documents, if available, and send him to the observation home or in jail.

(3) In every case concerning a child or juvenile in conflict with law, the age determination inquiry shall be conducted by the Court or the Board or, as the case may be, the Committee by seeking evidence by obtaining--

(a) (i) the matriculation or equivalent certificates, if available; and in the absence whereof;

(ii) the date of birth certificate from the school (other than a play school) first attended; and in the absence whereof;

(iii) the birth certificate given by a corporation or a municipal authority or a panchayat;

(b) and only in the absence of either (i), (ii) or (iii) of Clause (a) above, the medical opinion will be sought from a duly constituted Medical Board, which will declare the age of the juvenile or child. In case exact assessment of the age cannot be done, the Court or the. Board or, as the case may be, the Committee, for the reasons to be recorded by them, may, if considered necessary, given benefit to the child or juvenile by considering his/her age on lower side within the margin of one year.

And, while passing orders in such case shall, after taking into consideration such evidence as may be available or the medical opinion, as the case may be, record a finding in respect of his age and either of the evidence specified in any of the Clauses (a) (i), (ii) , (iii) or in the absence whereof. Clause (b) shall be the -conclusive proof of the age as regards such child or the juvenile in conflict with law.

(4) If the age of a juvenile or child or the juvenile in conflict with law is found to be below 18 years on the date of offence, on the basis of any of the conclusive proof specified in sub-rule (3), the Court or the Board or as the case may be the Committee shall in writing pass an order stating the age and declaring the status of juvenility or otherwise, for the purpose of the Act and these rules and a copy of the order shall be given to, such juvenile or the person concerned.

(5) Save and except where, further inquiry or otherwise is required, inter alia, in terms of Section 7A, Section 64 of the Act and these rules, no further inquiry shall be conducted by the Court or the Board after examining and obtaining the certificate or any other documentary proof referred to in sub-rule (3) of this Rule.

(6) The provisions concerned in this rule shall also apply to those disposed of cases, where the status of juvenility has not been determined in accordance with the provisions contained in sub-rule (3) and the Act, requiring dispensation of the sentence under the Act for passing appropriate order in interest of the juvenile in conflict with law.

In view of the aforesaid provisions it is clear that mere claim of being a juvenile is not sufficient. It has to be proved in accordance with the provisions of the Act, and the rules framed thereunder. The instant appeal was filed on 31.3.2003 and since 1.9.2003 it is being listed for hearing but the appellants sought adjournments on several occasions. Now after nine years the plea of juvenility of appellant No. 2 has been taken.

Alongwith application affidavit of brother of appellant No. 2 has been filed wherein the date of birth of appellant No. 2, has been mentioned on 1.7.1984. however, no documentary proof of this date of birth has been filed. Learned counsel for the appellant No. 2 has submitted that the appellant No. 2 has studied upto VIII standard, but no educational certificate also has been appended to prima facie establish his date of birth which could have moved us to order an enquiry to determine the age of appellant No. 2 on the date of offence. In our opinion, if the plea of juvenility is taken at a belated stage.

In the instant case nine years after filing of appeal and eleven years after arrest of accused, the appellant is required to prima facie substantiate his plea by filing sufficient documentary evidence to have an inquiry regarding this plea. It appears that in order to delay the hearing of appeal and bench hunting the instant application has been filed without any cogent or convincing evidence. Simply because the accused has stated his age as 19 years in his statement u/s 313, Cr.P.C. recorded on 26.8.2002 in our considered opinion is not sufficient to order an enquiry into the issue. The date of offence is 11.6.2001 and as per the statement of accused his age on this date comes to 16 years eleven months ten days and the date of birth comes in August, 1983.

It is a matter of common experience that whenever age is asked from a person he mentions his age in completed years. In this situation the accused appellant No. 2 should have stated his age as 18 years on 26.8.2002 if his date of birth was 1.7.1984, and not 19 years as noted by the trial court in his statement u/s 313, Cr.P.C. Non-filing of any documentary evidence in pursuance of Rule 12 (3) (a) (ii) and (iii) shows mala fide intention of appellant to get illegal benefit of the Act. The appellant could have easily provided the documents as have been mentioned in sub-rule (3) (a) (ii) and (iii) of Rule 12 (supra). Apart from it he could have filed copy of kutumb register, ration card, B.P.L. Card (if illegible for it), voters'' list or identity card issued by Election Commission of India in support of his claim. It is not the case of appellant No. 2 that no such documentary evidence is available with him. In the absence of such corroborative evidence the inevitable inference is that the date of birth given by his brother is untrue. Therefore, in the absence of any plausible proof of date of birth of the appellant No. 2 and any proof of age as stated above it cannot be said that the appellant is a juvenile. The application is meritless and it is accordingly rejected. For the reasons stated above, we find that the learned trial court has not erred in convicting and sentencing the appellants u/s 302, I.P.C. The appeal is therefore, dismissed.

Let certified copy of the judgment be sent to the court concerned for compliance.