Naresh vs State of U.P.

A.N. Dikshita, J.—Appellant, Naresh, has preferred this appeal against the judgment and Order dt. 30-3-79, passed by Sri. Jaswant Singh v. Addl. District and Sessions Judge, Badaun in Sessions Trial No. 341 of 1977 State v. Naresh convicting the Appellant u/s 307, IPC and sentencing him to 3 years R.I. and a fine of Rs. 1000/-, and in default there of he is directed to undergo 6 months'' further R.I.

The prosecution case is that one Chandra Prakash had gone to Narayan Khand Ashram and was returning from there around 2 p. m. on 13-7-76. Chandra Prakash returned home with his hands blood-stained and holding his right side of stomach. He was brought by Swami Shivanand of Ashram Narain Khand. Chandra Prakash informed his uncle Ram Naresh who had come to visit his brother Ram Raksh Pal at his Civil Lines residence, that one Naresh son of Chhotey Lal resident of Mohalla Katra Brahmapura, Badaun was near the road of the Ashram. On demand to repay the loan, Naresh shot him with a revolver. The incident was witnessed by Hardeman son of Ghan-shyam, Sardar Jatav and Roshan Lai son of Asharfi. After shooting Chandra Prakash, Naresh ran towards south. Ram Rakshpal father of Chandra Prakash took him to the Hospital and Ram Kishore uncle of Chandra Prakash went to the police station to lodge the report-indicating that the condition of Chandra Prakash is very serious.

An oral report of the incident was lodged at Police Station Kotwali, Distt. Badaun at 2.50 p. m. on 13-7-76. The distance of the police station is around 1/1-1/2 kms. Chandra Prakash was sent for medical examination and he was examined by Dr. R.K. Tandon, at District Hospital Badaun on 13-7-76 at 2.50 p. m. The following injuries were found on the person of Chandra Prakash:

Injury:-Gun shot wound of entry 2 cm x 2 cm x cavity deep on the Rt. iliac fossa front of abdomen. Bleeding scorching present around the wound.

Injury under observation. Advised X-ray. Caused by Proj. Fire arm. Duration-fresh.

The case was investigated by Sub-Inspector M.C. Jain, and a charge-sheet was filed. The Appellant denied the charge and was put on trial.

He was convicted and sentenced as stated above by the trial court.

In support of the prosecution PW 4 Chandra Prakash corroborated the version in the FIR. He bas stated that Ram Kishore is his real uncle. Naresh was known to him from before and he had taken a loan of Rs. 50/- which inspite of repeated requests and demands was not paid to him. On 13th July, 1976 this witness has stated that he had gone to Narain Khand Ashram and as he was returning from there around 2 O'' clock, Appellant Naresh met him. Again a demand was made. Some altercation ensued between the Appellant and this witness. This witness insisted for the payment of the amount but the Appellant took out the revolver and fired at him (Chandra Prakash) hitting him in the right side of abdomen. This witness has also stated that as he did not fall down on the ground, Appellant tried to fire another shot and as he was putting the cartridge inside the fire-arm, some persons of the locality ran and tried to catch-hold of him, but he escaped. Swami Shiva Nand took a rickshaw to his house where his uncle Ram Kishore and father Ram Rakshpal met him. Chandra Prakash narrated the incident to his father and Ram Kishore. On this Ram Kishore uncle of Chandra Prakash went to the police station to lodge the report while his father Ram Rakshpal took him to the hospital. In the hospital, he fell unconscious. He regained consciousness in the Mission Hospital at Bareilly, by which time he was operated upon. He regained consciousness after 5/6 days. This witness has been put to a very searching and gruelling cross-examination but nothing emerged as to make his testimony incredible. He has completely withstood the cross-examination and has testified that Naresh had hit him in the abdomen with the revolver. He has also stated that Naresh is known to him from before and that Naresh had hit him on account of his demand for repayment of the loan. There is nothing unnatural in the'' testimony of this witness which may not inspire confidence: His testimony thus deserves to be accepted.

PW 6 Sardar has also supported the prosecution story. He has clearly stated that Chandra Prakash had demanded the repayment of loan, on which Naresh took out the revolver and fired in the abdomen of Chandra Prakash. This witness has also stated that as Naresh was trying to put another cartridge in the revolver, he caught hold of him but some-how or the other Naresh escaped. One Swamiji had taken Chandra Prakash on a rickshaw to the house of Chandra Prakash and the other persons including this witness left for their home. This witness too has been put to a very detailed cross-examination but the fact remains that he saw Naresh Appellant taking out the revolver from his pocket and firing at Chandra Prakash. He has further stated that as Naresh was trying to put another cartridge, he tried to catchy-hold of him but did not succeed. Naresh some how or the other fled away There is again nothing in the statement of this witness to discard his testimony which is wholly believable.

PW 3 Ram Kishore, has testified that he has lodged the report after Chandra Prakash had narrated the incident to him. He has corroborated the version implicitly and there is no material which may be found incomprehensible with the prosecution version.

Learned Counsel for the Appellant Sri. P.N. Misra, has not been able to make out any case on behalf of the Appellant so as to discredit the statement of the witnesses or to put a dent on the prosecution version. The conviction of the Appellant u/s 307 IPC is fully justified. Learned Counsel for the Appellant has however submitted that the Appellant on the date when he was examined u/s 313 Code of Criminal Procedure on March 12, 1979 was of 17 years. The trial court while awarding punishment has also held that age of the Appellant is 17 years and this fact has not been challenged by the prosecution. It would thus emerge that on the date of the incident, the age of the Appellant would be around 14 years 8 months. Learned Counsel for the Appellant submits that in view of the age of the Appellant on the date of the incident, the Appellant is entitled to protection under the Children Act and the sentence awarded to him deserves to be quashed. Learned Counsel for the Appellant has placed reliance in the case of Narendra v. State 1980 ACR 29. Learned Counsel for the Appellant has submitted that the Children Act was enforced in Badaun w.e.f. 23rd November, 1978.

In view of the above, I have no doubt that the prosecution has fully proved its case beyond reasonable doubt. The defence has miserably failed to create a dent in the prosecution version. The conviction of the Appellant is thus maintained. However in view of the provisions of Section 27 of the U.P. Children Act, he is entitled to its benefit as no court shall sentence a child to imprisonment for life, or to any term of imprisonment. Section 27 of the Act provides in so far as it is material that if a child is found to have committed any offence punishable with imprisonment, he may be sent to an approved school for the period till he attains the age of 18 years. Instantly Appellant Naresh has crossed that age. The sentence of imprisonment of-3 years, R.I. and a fine of Rs. 1000/- awarded to the Appellant has thus to be quashed.

In view of the above discussion, the appeal is dismissed and the conviction awarded by the trial court u/s 307 IPC is affirmed. However giving the benefit of Section 27 of the Children Act to the Appellant, the sentence awarded by the trial court is hereby quashed. The Appellant is on bail. He need not surrender. His bail bonds are discharged.