Mahadeo and Others vs State

D.K. Trivedi, J.—The present Criminal Appeal is directed against the judgment and order dated 12.6.1980 passed by the lllrd Additional Sessions Judge, Gonda convicting the Appellants u/s 302/34, I.P.C. and sentencing each of them to imprisonment for Life In connection with an incident alleged to have taken place on 23.8.1977 at about 10.45 a.m. near Belal Nala situated on the east of police station Paraspur, District Gonda.

The prosecution case in brief is that there was an enmity between the complainant Raj Bahadur and accused Mahadeo and the proceedings u/s 107/116, Code of Criminal procedure. took place between them. It is said that on the date of the incident. i.e. 23.8.1977 at 10.30 a.m. the complainant was accompanying his brother Ambika Singh to his Pahi of village Barwanpurwa H/o Maghaipur Khandeyrai from market. It is said that as soon as they reached near Belai Nala situate at about one furlong away from P.S. Paraspur, the complainant sat there to make water and his brother Ambika went ahead. It is said that on raising from the place after attending to call of nature, he saw the accused persons, namely: Ram Naraln, Mahadeo, Vijai Shanker alias Vijai Bahadur, Shesh Raj alias Chhangu, Desh Raj and Ram Bahadur alias Pappu armed with lathis came out from the Behaya bush and on the exhortation of accused Ram Narain, his other companions started assaulting Ambika Singh (deceased) with their respective weapons. The complainant raised an alarm and on hearing the alarm, several persons reached there and witnessed the incident. It is also alleged that on hearing the hue and cries, Sub-Inspector of Police as well as Constable also reached the place of the incident and they also chased the accused persons. It is said that the villagers with the help of the police men apprehended accused persons, namely ; Mahadeo, Vijai Shanker altos Vijai Bahadur and Shesh Raj alias Chhangu but the other three accused persons managed to run away. It is said that Ambika Singh was in unconscious state and, therefore, complainant Tej Bahadur prepared a report scribed by P.W. 3 Shitla Prasad Shukla and handed over to P.W. 6 S.I. Shyam Deo Ram on the spot itself. The F.I.R. was thereafter, lodged on the same day at 11.20 a.m. at P.S. Paraspur, District Gonda. The police recovered the lathis, prepared the memo and thereafter, the injured as well as the, accused persons were brought to the police station and there a chik F.I.R. was prepared and sent the injured to P.H.C. Paraspur for medical examination by constable Sharda Singh. Injured Ambika Singh however, succumbed to his injuries in the Hospital and on receipt of this Information the case was converted u/s 302, I.P.C. The dead body of deceased Ambika Singh was thereafter, brought to the police station from the Hospital. Then the Investigating Officer prepared the inquest report Ext. Ka. 10 and also prepared other relevant papers Ext. Ka. 11toKa. 16 for autopsy and thereafter, the dead body was handed over to Constable Shridhar Pandey and Chhatradhari Yadav who brought the dead body to mortuary for post mortem examination. The Investigating Officer, thereafter, recorded the statements of the witnesses and prepared the site plan Ext. Ka. 17. He also took the attendance register from the school where the accused persons were employed as teachers and after completing the investigation, S.O. Arjun Singh (who received investigation from S.I. Shyam Deo Ram) submitted the charge-sheet against the accused persons.

P.W. 4 Dr. M.S. Seth conducted autopsy on the dead body of deceased Ambika Singh on 24.8.1977 at 2 p.m. The doctor found the following ante mortem injuries on the dead body of deceased Ambika Singh:

(1)Lacerated wound 5 cms. x 2 cms. x bone deep front of right leg, 10 cms. below knee. Bone protruding out of the wound.

(2)Lacerated wound 3.2 cms. x 1 cm. x bone deep front of left leg, 6 cms below injury No. 1, right tibia and right fibula broken into multiple pieces, under injury Nos. 1 and 2. Massive blood clots present in the muscle.

(3)Contusion 6 cms. x 2 cms. inner side right thigh middle.

(4)Contusion 4.5 cms. x 2 cms. inner side right thigh, 4 cms. below injury No. 3.

(5)Contusion 10 cms. x 2 cms. outer part right buttock.

(6)Contusion 9 cms. x 2 cms. outer side left thigh 14 cms. below anterior superior iliac spine.

(7)Contusion 6 cms. x 1.5 cms. inner side left thigh 6 cms. above knee.

(8)Lacerated wound 2 cms. x 1 cm. x bone deep front of left leg 4 cms. below knee.

(9)Lacerated wound 2 cms. x 1 cms. x bone deep front of left leg 1 cm. below injury No. 8.

(10)Lacerated wound 4 cms. x 1.5 cms. x bone deep front of left leg 2 cms. below injury No. 9.

(11)Lacerated wound 6.5 cms. x 1.5 cms. x muscle deep front of left leg 0.5 cm. below injury No. 10.

(12)Lacerated wound 1.5 cms. x 0.5 cm. x muscle deep inner side left leg 5 cms. above the inner malleolus.

(13)Lacerated wound 1 cm. x 0.5 cm. x muscle deep 1 cm. above injury No. 12.

(14)Contusion 7 cms. x 2 cms. outer side left thigh, 7 cms. below injury No. 6.

(15)Contusion 10 cms. x 2 cms. front of left shoulder and adjacent part of left arm.

(16)Contusion 15 cms. x 4 cms. outer side left arm upper part.

(17)Contusion 5 cms. x 2 cms. back of right elbow.

(18)Lacerated wound 0.5 cm. x 0.5 cm. x skin over knuckle of right little finger.

(19)Abrasion 0.5 cm. x 0.5 cm. back of right forearm, 8 cms. below elbow.

(20)Abrasion 0.5 cm. x back of right forearm 6.0 cms. below the injury No. 19.

(21)A Cr.R. 47 Contusion 17 cms. x 6 cms. right scapula region back.

(22)Contusion 16.5 cms. x 2 cms. right side back, 12 cms. below scapula.

(23)Lacerated wound 10 cms. x 1 cm. x bone deep on both right and left side of skull, 8.5 cms. above the right ear and 10 cms. above left ear.

(24)Lacerated wound 4 cms. x 0.5 cm. x whole thickness of the lower lip. Transverse in the middle. Right joint bone fractured underneath the injury.

(25)Lacerated wound 5 cms. x 0.5 cm. x bone deep. Right occipital region skull 7.5 cms. behind the ear.

On internal examination of the dead body, the doctor found massive hematoma present on right side under the scalp. Right temporal and parietal bones were found fractured under the injury No. 23. The membranes were also found congested. The stomach of the deceased contained eight ounces of semi digested paste like food and small intestines were found to contain gases and the large-intestine was full of faecal matter. According to the doctor, the death of the deceased Ambika Singh was caused due to hemorrhage and shock as the result of ante-mortem injuries. The post mortem report is Ext. Ka. 5.

The prosecution in support of its case examined six witnesses out of them P.W. 1 Tej Bahadur, P.W. 2 Jagdamba Prasad and P.W. 3 Shitla Prasad Shukla are witnesses of fact. P.W. 4 Dr. M.S. Seth conducted autopsy on the dead body of deceased Ambika Singh and proved the postmortem report Ext. Ka. 5. P.W. 5 constable Moharrir Rup Naik Pandey registered the case and proved the chik report as well as other entries in the G.D. and P.W. 6 S.I. Shyam Doe Ram conducted the investigation of this case.

On the other hand, the present accused-Appellants denied having committed the crime attributed to them. They also stated that they have been falsely implicated in this case, due to enmity.

On behalf of the accused persons, three defence witnesses were also examined. D.W. 1 Dr. S.K. Srivastava, proved the injury reports of the accused-Appellants. D.W. 2 Constable Ram Avadh who was Court Moharrir in the Court of Magistrate, Tarabganj, was examined to prove the identification memo to the effect that nobody was able to identify the accused. D.W. 3 Chandra Mohan Saini is also constable who has proved the signatures of S.I. Shyam Deo Ram as well as Head Moharrir Jwala Prasad.

The learned Sessions Judge after considering the evidence on record, came to the conclusion that the prosecution has successfully proved the guilt of the three of the accused persons namely ; Mahadeo, Vijai Shanker alias Vijai Bahadur and Shesh Raj alias Chhangu but has failed to prove the guilt of the remaining accused persons namely; Ram Narain, Desh Raj and Ram Bahadur alias Pappu and therefore, the earned Sessions Judge convicted the accused persons namely, Mahadeo, Vijai Shanker alias Vijai Bahadur and Shesh Raj alias Chhangu u/s 302/34, I.P.C. and sentenced each of them to imprisonment for life but acquitted the aforesaid three accused persons of the charges levelled against them.

The accused-Appellants aggrieved by the said judgment and order, have preferred the aforesaid criminal appeal before this Court.

We have heard the learned Counsel for the accused-Appellants as well as the learned Government Advocates and have also perused the record carefully.

The learned Counsel for the Appellants has tried to challenge the findings of the learned trial Judge that, the witnesses examined in this case are not reliable witnesses but in our opinion, the same is not acceptable. The learned Counsel for the Appellants pointed out that according to the prosecution case, the complainant as well as deceased Ambika Singh was going to village Barwanpurwa and it is said that the accused persons surrounded them near the police station, near Belai Nala which situate at a distance of about one furlong from the police station Paraspur, district Gonda. According to the learned Counsel for the Appellants, there is nothing on the record to show as to how these accused persons were aware of this fact that they will go to village Barwanpurwa and, therefore, in these circumstances, the story of the prosecution that the accused persons had concealed themselves near Belai Nala, is not acceptable This fact is consistently proved from the evidence of the eye-witnesses that the complainant as well as the deceased (Ambika Singh) were going to village Barwanpurwa and they were attacked just near Belai Nala. The accused persons had a motive to commit the murder and in these circumstances, they can very well assemble and commit this crime near Belai Nala. So far as the fact as to how they could know this fact that Ambika Singh (deceased) will pass through this Nala is concerned, the same can be proved by P.W. 1 Tej Bahadur. P.W. 1 Tej Bahadur was examined and was cross-examined by the defence at great length but there is nothing in his cross-examination on which basis it can be said that the prosecution story that he was going to village Barwanpurwa is not acceptable. Apart from this, it is proved by the testimony of the eye-witnesses as well as the fact that all the three accused-, Appellants were brought to the police station for lodging of the F.I.R. that these persons were caught hold off by the villagers just after the incident. This shows that at least the accused-Appellants were present on the spot and they were caught hold off by the villagers just after the incident.

The next contention of the learned Counsel for the Appellant is that in the instant case, the learned Sessions Judge has disbelieved the testimony of these eye-witnesses while acquitting the three other accused persons, namely. Ram Narain, Desh Raj and Ram Bahadur alias Pappu. Therefore, the testimony of these eye witnesses cannot be relied upon against the present accused-Appellants, namely; Mahadeo, Vijai Shanker alias Vijai Bahadur and Shesh Raj alias Chhangu.

We find no force in this contention also.

The learned Sessions Judge while convicting the aforesaid three accused-Appellants and acquitting the other three accused persons as mentioned above, has given cogent reasons and has tried to sift the grain from the chaff and, therefore, he convicted the aforesaid three accused-Appellants who were arrested on the spot just after the incident. The case of the present three accused Appellants is quite distinguishable than the case of the others who were arrested later on and were also put up for identification. In identification parade, they were not identified by any of the witnesses and, therefore, their case stands on different footing.

The accused-Appellants just after the arrest were brought to the police station and were lodged there along with the F.I.R. This fact totally belies the defence case that they have been falsely implicated in this case due to enmity.

Lastly, the learned Counsel for the Appellants further contended that even accepting the findings of the learned Trial Judge atleast Appellants Vijai Shanker alias Vijai Bahadur as well as Shesh Raj alias Chhangu cannot be convicted because they were child at the time of the incident. According to him, on the date of the incident, these two accused-Appellants as mentioned above had not completed 16 years of age, therefore, in view of Section 2(4) of U.P. Children Act, they will fall in the category of child and, therefore, they cannot be sentenced and sent to jail.

We find force in this contention.

Appellant Vijai Shanker alias Vijai Bahadur in his statement u/s 313, Code of Criminal procedure. gave his age as 17 years. Appellant Shesh Raj in his statement u/s 313, Code of Criminal procedure stated that he is aged about 15 years. There is nothing on record to controvert these facts. The statements of these two accused-Appellants were recorded on 7.5.1980. whereas the incident took place on 23.8.1977. This itself shows that both these Appellants were below the age of 16 years on the date of the incident. Section 2(4) of U.P. Children Act defines the ''child'' and provides that the person under the age of 16 years will be presumed as child. Again Section 27 of the Act provides that no Court shall sentence a child to imprisonment for life or to any term of imprisonment meaning thereby that the person below the age of 16 years cannot be sentenced for imprisonment and sent to jail. No doubt, there is no bar about the conviction of the child but the Act prohibits the imposition of sentence, therefore, the person who is below 16 years cannot be sentenced to imprisonment. In a case of Jayendra and another Vs. State of Uttar Pradesh, , the Hon''ble Supreme Court while upholding the conviction of the Appellant quashed the sentence and directed the release of the Appellant from jail because the accused had already crossed the age of 18 years, therefore, he cannot be sent to approved school for reformation and rehabilitation up to the age of 18 years. If the accused crossed the age of 18 years then he cannot be sent to Approved School and as there is a bar for sending a child to prison, therefore, in these circumstances, there is no alternative except to quash the sentence and direct the release of these Appellants, namely, Vijai Shanker and Shesh Raj.

The abovementioned view further finds support from the case of Bhoop Ram Vs. State of U.P., , in which apart from reiterating the abovementioned view, the Apex Court further held that the school going certificate etc. are the best piece of evidence and the same be believed in the absence of any other material controverting the age factor.

In similar circumstances, while interpreting the provisions of Tamil Nadu Borstal School Act, 1925 as well as Andhra Pradesh Borstal School Act, 1925, the Hon''ble Supreme Court took a view that the accused cannot be detained in prison after attaining the age of 23 years, because the said Act provides that the maximum period of conviction will be five years or on his attaining the age of 23 years See 1984 SCC 635 ; 1985 SCC 1 . Again, the Hon''ble Apex Court while deciding the case of Satpal Antil and others Vs. Union of India and another, , reiterated the view enumerated in the case of Jayendra (supra) and directed the release of the accused because the accused was below the age of 16 years at the time of offence and further had attained the age of 18 years.

In 1993 while deciding the case of State of Haryana v. Balwant Singh 1993 SCC 251, the Apex Court took a view that the Court committed an error in holding the accused as child on the basis of the sole statement of the accused recorded u/s 313, Code of Criminal procedure.. but the Apex Court again in 1988, in a case of Bhola Bhagat v. State of Bihar 1988 SCC 125, reiterates the view enumerated in the case of Jayendra (supra), and further observed that the law laid down in a case of State of Haryana v. Balwant Singh, is not a good law in view of the principle propounded in the case of Bhoop Ram (supra).

In the instant case, two of the Appellants as mentioned above had already disclosed their age in their statements u/s 313, Code of Criminal procedure., the correctness of their age has not been assailed by the prosecution and also there is nothing on the record to show that the age given by these accused persons in their statements u/s 313, Code of Criminal procedure., is not correct. In these circumstances, in our opinion, it would be fair and proper to presume that on the date of the incident, two accused-Appellants, namely ; Vijai Shanker alias Vijai Bahadur and Shesh Raj alias Chhangu were below the age of 16 years and, therefore, they were child at the time of the incident in view of the provisions of Section 2(4) of the U.P. Children Act. It is not disputed that the Act gives a protection to the children and, therefore, in our opinion, two of the accused-Appellants, namely ; Vijai Shanker alias Vijai Bahadur and Shesh Raj alias Chhangu should not be denied the benefit of the provisions of U.P. Children Act which is held to be socially progressive statute.

Accordingly, while confirming the conviction of all the accused-Appellants, we quash the sentence awarded to Appellants Vijai Shanker alias Vijai Bahadur as well as Shesh Raj alias Chhangu and direct that both these Appellant be released. The conviction and sentence awarded by the trial Judge against Appellant Mahadeo is hereby confirmed. If, the abovementioned Appellants, namely, Mahadeo, Vijai Shanker alias Vijai Bahadur as well as Shesh Raj aiias Chhangu are in jail then, out of them Appellant Mahadeo shall remain in jail to serve out the sentence awarded by the learned trial Judge in accordance with law and other Appellants, namely; Vijai Shanker and Sheh Raj alias Chhangu are directed to be released forthwith unless wanted in any other case. If, the abovementioned Appellants are on bail, then Appellant Mahadeo be taken into custody forthwith and be sent to jail forthwith to serve out the sentence awarded by the learned trial Judge and the remaining Appellants as mentioned above need not surrender. Their bail bonds are cancelled and sureties thereof stand hereby, discharged. The Chief Judicial Magistrate, Gonda will submit the compliance report within six weeks from today.

The present Criminal Appeal is accordingly dismissed with the modification as mentioned above.