Nanak vs State

Giridhar Malaviya, J.—This appeal has been preferred by Nanak who was convicted u/s 302 Indian Penal Code and was awarded life imprisonment in Sessions Trial No. 567/1979 by the judgment and order dated 7-5-1979 passed, by IIIrd Additional Sessions Judge, Bulandshahr.

The First Information Report dated 23-8-1978 lodged by one Jai Pal Singh at police station Chandpur at 6.15 p.m. mentioned that one Prakash had opened a shop in the village Panchyatghar where undesirable activities had started. This was resented by Bhavi Chand s/o Ram Singh Jatav of the village and the shop at Panchyatghar was got closed. Since then Prakash had grudge against Bhavi Chand. On the day of the report Bhavi Chand, who was blind, was going towards the east of the village in the fields along with his nephew Man Singh at about 2.30 p.m. to ease himself. When he reached the miaze fields of Alla Mahar, Prakash along with Nanak appellant arrived. Prakash was armed with a Paras and Nanak appellant had a knife. Immediately after arrival Prakash said "you blind man you have got may shop closed at Panchayatghar for which today you would have a lesson". Saying this both Prakash and Nanak started inflicting farsa and knife injuries on Bhavi Chand. On the alarm raised by Bhavi Chand and Man Singh informant Jaipal as also Chhotey Lal, Anwar All and Manbir of his village as also many other persons arrived there who saw the incident. After killing Bhavi Chand both Nank appellant and Prakash fled away towards the east. Leaving the dead body in the care of the village people, the informant had come to the police station to lodge the report on which necessary action be taken.

On the basis of this First Information Report a chik was prepared by PW 6 Hariya Singh. Investigation was taken up by PW 7 Sangram Singh who reached the place of the occurrence after recording the statement of the first informant at the police station itself At the place of the incident itself the Investigating officer recorded the statement of Anwar AH, Chhotey Lal and other persons He could not prepare the inquest on the same day due to darkness. However be completed all the formalities on the next day where after he sent the dead body for post mortem examination. He tried to arrest the accused persons who were not available. Consequently he recorded their statement in jail on 9-9-1978 where after he submitted the charge sheet.

The post mortem on the body of Bhavi Chand was conducted on 24-8-1978 at 4 p.m. by PW 4 Dr. G.N. Srivastava. He found two incised wounds on the top of the head of the size of 5" x 1 1/2" and 3 1/2" x 1" x bone deep cutting the bone. He also found three stabbed wounds of 2" x 1 1/2" x 1 1/2" x 1/2", and 1 1/2" x 1/2" in the abdomen middle part lateral to umbilicus on the lateral part of the right neck and over upper left back region respectively. In the opinion of the doctor these injuries were sufficient in the ordinary course to cause death.

After the charge sheet was submitted in the court, the accused denied the charge where after he was tried. The prosecution examined PW 1 Jai Pal Singh. PW 2 Anwarali and PW 3 Chhotey Lal as eye witnesses, Out of them Jaipal Singh turned hostile. Other witnesses examined in the case were formal.

The learned Sessions Judge, on the assessment of evidence, found the case against the accused persons proved with the result that he found both Prakash and Nanak guilty u/s 302 Indian Penal Code and awarded them life imprisonment. Against their conviction both the parties have preferred separate appeals. Prakash''s appeal being Criminal Appeal No. 1528/ 1979 has been abated by this Court on 19-1-1994 in view of the report of Chief Judicial Magistrate that he has since died. In this appeal of Nanak we have heard Sri R.P. Tripathi in favour of the appellant as also learned Counsel for the State.

Anwarali PW 2 in his deposition has stated that he, on the relevant date and time, was keeping a watch over his Mucca fields when he heard some alaram. He went towards the west where he found Prakash armed with Farsa and Nank armed with knife assaulting Bhavi Chand on the patri between his Mucca fields. Bhavi Chaad trying to save him rushed towards the main road. On the main road Prakash and Nanak struck him with their respective weapons. Apart from him Chhotey Lal, Manbir Singh and Jaipal Singh had also come. Witnessing these persons the accused fled towards the east. This witness also stated that Bhavi Chand got the shop of Prakash removed from the village chaupal due to which Prakash had a grudge against Bhavi Chand. This witness was cross examined but we have found nothing in the cross examination to discredit his testimony. Learned Counsel for the appellant had argued that since it had come in his cross examination that the crop was almost of the height of human beings it was not possible for this witness to have seen the incident. We do not agree. As this witness was present on the spot only to keep a watch over his crop it is obvious that once some person raises an alarm and runs away this witness would be a most natural person to see what is happening. This witness has withstood the cross examination very well. His Mucca field as elicited in his cross examination was hardly 30 feet wide from east to west. The site plan also reveals that the southern field was 65 steps wide from east to west. However what is further more important is that the site plan shows that it was from a distance of 8 paces from the west that the deceased had gone towards the main road through the fields and after running hardly for about 15 steps the deceased was done to death on main road. We have no doubt that this witness could have very well witnessed the incident,

PW 3 Chhoty Lal stated that on the date and time of the incident he had taken his buffalo to the pond which was situated towards the north of the road when he heard the alarm. He could see the accused persons striking Bhavi Chand with their respective weapons, he also stated that at his panchayatghar shop Prakash used to misbehave with the young ladies of the village due to which Bhavi Chand and some other persons had got his shop removed from the panchayatghar. This witness was also cross examined and we find nothing in his testimony by which it can be said that his statement requires any particular scrutiny it was not suggested to either of the two witnesses that they have had any enmity with the present appellant Nanak. As such it is difficult to believe why these witnesses would be falsely deposing against appellant Nanak. Consequently on the testimony of these two witnesses we have come to the conclusion that the conviction of the appellant as recorded by the trial court is perfectly justified.

Learned Counsel for the appellant has next argued that appellant Nanak in his statement u/s 313 Code of Criminal Procedure had given his age to be 15 years. He states that in view of this assertion by the appellant it was the duty of the Sessions Judge to have ascertained whether the appellant was a child within the meaning of the U.P. Children Act which was applicable at that time. In reply to this the learned State counsel has alleged that the Sessions Judge himself had observed at the same place that the accused appeared to be about 17 years old. This statement u/s 313 Code of Criminal Procedure was recorded on 24-4-1979 whereas the occurrence had taken place just eight months prior to the said statement i.e. on 23-8-1978, whereas the contention of learned Counsel for the appellant is that the appellant was a child within the meaning of the Act No. 1 of 1952 mentioned above, the contention of learned Counsel for the State is that on the basis of the assessment of the learned Sessions Judge the age of the appellant Nanak on the date of incident would be 16 years and 4 months. Learned State counsel has also observed that the Sessions Judge in paragraph 34 of the judgment has observed that Prakash on the date of the judgment was 26 years and Nanak was about 17 years old. This judgment was delivered on 7-5-1979, hence learned Counsel for the State has contended that even if this observation is taken into consideration the appellant Nanak was not less than 16 years of age so as to attract the provisions of U.P. Children Act.

It would be relevant to refer to some of the judgments on this point. In Jayendra v. State of U.P. AIR 1982 SC 685. The Supreme Court had called a report from the doctor incharge of the Jail hospital regarding the age of Jayendra. The report indicated that by general appearance, physical examination and radiological findings Jayendra was about 23 years of age on the date of the report meaning thereby that on the day of incident he was about 16 years and 4 months old. Holding that the estimate given by the Chief Medical Officer was a rough estimate by approximation whereas in his statement the appellant had given his age to be 15 years which had not been contradicted the Supreme Court opined that Jayendra was a child within the meaning of this provisions. Considering that in view of Section 27 of the U.P. Children Act which said that no court could sentence a child to imprisonment for life or any term of imprisonment and considering that Section 2 provided that if a child was found to have committed an offence punishable with imprisonment the Court could order him to be sent to an approved'' school till be attained the age of 58 years, the Supreme Court did not even send Jayendra to the approved school holding that they could not do so as he had attained the age of 23 years. The result was that though conviction of appellant Jayendra had been upheld the sentence imposed upon him was quashed and Jayendra was directed to be released forthwith.

Similar point had come up for consideration before a Division Bench of this Court in the case of Jagbir v. State of U.P. 1982 UP. CrR 580. In the said case the appellant had given his age as 16 years in his statement u/s 33 Code of Criminal Procedure. The Sessions Judge had observed by making an endorsement in his handwriting that the appellant appeared to be 22 to 23 years old on 15-12-1978 which was the date of his statement. However in his judgment the learned Sessions Judge had observed that the appellant was 16 to 17 years old.

It was argued in the above mentioned case of Jagbir before the High Court that in view of his age given in his statement u/s 313 Code of Criminal Procedure as also the observation in the judgment that the appellant was 16 or 17 years old the provisions of U.P. Children Act would be attracted and the appellant could not be sent to jail. The High Court repelled the contention of the State counsel that observation of the learned Sessions Judge that the appellant appeared to be 22 or 23 years old not be availed of by the prosecution in view of the Sessions Judges'' own observation in the judgment that he was 16 or 17 years old. Thereafter the division bench of the High Court after relying upon the case of Jayendra (supra) as also the case of Raisul Vs. State of U.P., observed as follows:

In the present case the learned Sessions Judge had erred in sentencing the appellant to imprisonment for life. If the learned Sessions Judge had any doubt about the age of the appellant, he should have made inquiry by asking the prosecution to adduce evidence about the age of the appellant and also obtaining the necessary medical report.

Thereafter the division bench after quoting rule 50 of the General rules (criminal) 1977 framed by the High Court observed as follows:

The learned Sessions Judge ought to have followed the directives of this Court as contained in the above quoted Rules.

Relying upon the case the Jagbir v. State of U.P. (supra) the learned Counsel for the appellant said that the Sessions Judge having not made any enquiry, the age of the appellant given in his statement u/s 313 Code of Criminal Procedure must be held to be conclusive on the point and it must be held that the appellant was a child. On the other hand the learned State counsel has asserted that since in the instant case of Nanak, even in the judgment the Sessions Judge had observed the appellant to be about 17 years of age, hence the facts of the case of Jagbir are not attracted to this appeal of Nanak. The contention of learned State counsel is that in this case both on the basis of the age of the appellant given by him in his statement u/s 313 Code of Criminal Procedure as also on the basis of the observation of the learned Sessions Judge in his judgment, it cannot be said that appellant Nanak was less than 16 years of age on the date of incident.

We cannot accept the extreme contention of learned Counsel for the appellant that wherever an accused gives his age in his statement u/s 313 Code of Criminal Procedure to be less than 16 years, in every such case the Session Judge must enter into an enquiry to determine whether the accused is a child or not. By the appearance person may be so convincingly much above the age of 16 years that it will be difficult to even presume him to be a child of 16 years of age. In that case we do not think that the proceedings of the session�s trial hat to be withheld for an enquiry to determine whether the appellant is a child or not. If the extreme contention of learned Counsel for the appellant was to be accepted, that would mean that even if a person who, by hit appearance, is well over 25 years of age, states in his statement u/s 313 Code of Criminal Procedure that he is 15 years old, the Sessions Judge has to enter into an enquiry. Law never contemplates such absurd enquiries. It is true that in the case of Jagbir the Sessions Judge had observed that the appellant by his appearance was about 22 or 23 years of age, but for the reasons best known to the Sessions Judge himself in his judgment he had again observed that the appellant was 16 to, 17 years of age. The High Court had consequently given the benefit of such an observation to the accused and hand held him to be a child despite an observation of the Sessions Judge on the statement recorded u/s 313 Code of Criminal Procedure that Jagbir did appear to be grown up man of about 22, or 23 years of age. Such is not the case here in the case of Nanak. Even the Sessions Judge had held that the appellant appeared to be about 17 years old. We follow the observations of the Supreme Court in the case of Jayendra (supra) that even the estimate given by a Chief Medical Officer after the examination of the person as per his appearance, physical examination and radiological finding was a rough estimate given by approximation. Consequently the estimate of age of the learned Session Judge also in the case of Nanak cannot be accepted to be conclusive. Moreover we have on the record paper No. B 12/13 which was an application for bail moved before the Chief Judicial Magistrate, Bulandshahar by Nanak appellant in which it was stated that Nanak was a minor aged about 15 years due to which ha had been kept in the children barrack of the jail. On the basis of this allegation the Chief Judical Magistrate had granted bail to Nanak appellant by the following order:

The accused (paper torn) minor aged about 15 years. The deceased is said to be notorious man, Bail is allowed. Let two sureties of Rs. 3000/- each and two P.B. in like amount be filed.

Sd. Illegible. 21-9-71.

We have, therefore, a judicial order on the record by which the appellant was held to be a minor. Consequently in this case case we hold that the appellant could be a child within the meaning of U.P. Children Act on the date of the incident, and as no enquiry had been conducted by the Sessions Judge to determine his age this benefit should go to the appellant as was given by the Supreme Court to Jayendra in the case mentioned earlier. However we would reiterate that whenever an accused in his statement u/s 313 Code of Criminal Procedure pleads before the Sessions Court that he is a minor and the Sessions Judge finds the age of the appellant by appearance to be bordering 16 to 18 years, the Sessions Judge should invariably get the question of age determined by holding necessary enquiry in that regard, as now, even under the Juvenile Justice Act a child can neither be tried nor sent to prison.

The result is that this appeal is partly allowed. Conviction of appellant Nanak u/s 302 Indian Penal Code is maintained, yet in view of Section 27 of the U.P. Children Act he can not be sentenced to imprisonment for life or any term of imprisonment. Since Nanak is now over 18 years of age he can not be sent to any approved school now. Accordingly the sentence imposed upon appellant Nanak is quashed. He is directed to be released forthwith.