Omkar Singh alias Nathu Singh and Others vs State of U.P.

B.N. Shukla, J.—Challenge in this appeal is to the judgment and order dated 5.5.1981 passed by the VIth Addl. Sessions Judge, Bareilly in S.T. No. 385 of 1980 u/s 148, 302 IPC relating P.S. Faridpur, District Bareilly State v. Onkar Singh and Ors. (Crime No. 329 of 1979) whereby convicting the appellants u/s 148 and 302 read with Section 149 IPC and sentencing them to undergo R.I. for one year u/s 148 IPC and imprisonment for life u/s 302 read with Section 149 IPC.

Shorn of unnecessary details, as alleged by the prosecution the occurrence took place on 22.10.1979 at 12:00 noon and the first information report was got lodged on same date 15:05 PM. Place of occurrence is village Khateli within circle of P.S. Faridpur, District Bareilly which is 10 miles away from the police station. It is prosecution case that at the time of occurrence Jagdish, brother of the informant Ranveer Singh, was sitting under thatched roof and the informant, Munna, Ram Katori, Sushila Devi and Brahmpal were sitting at the door of house which was purchased from Ram Katori. Omkar Singh alias Nathu Singh and Nirankar Singh alias Pappu sons of Badshah Singh armed with D.B.B.L. guns appeared from north side and on exhortation given by accused Pappu, in order to take revenge relating to murder of his father, all accused fired shots at Jagdish Singh who in order to save himself ran towards south but accused chased and fired shots at him as a result of which he fell down on the road in front of house which was purchased from Ram Katori and died instantaneously. Witnesses cried and accused ran away towards south. Motive for the crime has also been revealed which relates to murder of Badshah Singh who was father of 2 accused who wielded D.B.B.L. guns and in murder case Jagdish Singh (the deceased) was one of the accused. The informant Ranveer Singh (PW-1) leaving the inmates of the house near the dead body had gone to the police station and lodged the FIR (Ext.Ka.1) which was registered by H.M. Ram Swaroop Mishra. He also made entry in the general diary (Ext.Ka.7).

S.I. Kale Ram (PW-5) reached on the spot on 22.10.1979 and conducted inquest on the dead body of Jagdish Singh and prepared inquest report (Ext.Ka.3) along with relative papers (Ext.Ka.5 & Ka.6). He took blood stained and conditioned earth from the spot (Ext. 1&2) and prepared memo (Ext.Ka.4). He send dead body in sealed condition for autopsy through constable Hem Raj (PW-3) along with village Chaukidar.

Dr. S.K. Khare (PW-4) conducted postmortem on the dead body of Jagidsh Singh on 23.10.1979 at 5:20 pm and found the following ante mortem injuries:

Incised wound 20 cm x 12 cm x Brain cavity deep on the left side of the fore head to the occipital region. The skull bone are broken in pieces.

Incised wound 7 cm x 3 cm x bone deep on the right frontal region connecting injury No. 1. obliquely.

G.S.W. of entry two in number average size 1 cm x 1 cm x skin deep on the angle and the ranus of the mandible.

G.S.W. of enter 5 cm x 6 cm x muscle deep on the right scapular region upper part. Connecting G.S.W. of exit 8 cm x 8 cm on the top of the right shoulder 3 cm lateral to the root of the neck. Margins charred.

G.S.W. of entry in an area of 11 cm x 8 cm x cavity deep six in number average size 1 cm x 1 cm on the left side of the chest lateral to the left nipple. Blackening present.

G.S.W. of entry 3 cm x 3 cm x cavity deep with charred margins on the lower part of the back 7 cm above the iliac crest and semi fracture medium pleura.

G.S.W. of entry 3 x 3 cm x cavity deep on the upper most part of the left hip adjacent to the medium pleura margins are charred.

Multiple G.S.W. in an area 10 x 7 cm (6 in number) average size 1 x 1 cm x cavity deep on the right back opposite injury No. 6.

G.S.W. of exit in an area of 5 cm x 3 cm (2 in number) average size 1.2 x 1.2 cm just below right costal margin.

G.S.W. of exit (three in number) in an area of 6 cm x 4 cm on the left side abd. 6 cm below left costal margins.

On internal examination he found skull bones broken in pieces, brain lacerated and coming out of skull, 7 & 8 ribs fractured, 5-8 left ribs fractured, right and left lungs punctured at 6 & 5 places respectively, peritoneum punctured, stomach empty, small and large intestines punctured at 4 and 5 places respectively, pancreas punctured at 3 places, spleen and both kidneys punctured. Doctor prepared postmortem report (Ext.Ka.2). He was of opinion that death was caused due to shock and haemorrhage as a result of injuries.

S.I. Bhanwar Singh (PW-6) took up investigation of the case. He visited the place of occurrence and prepared site plan (Ext.Ka.8), recorded statement of the witnesses and after conclusion of the investigation submitted the charge-sheet (Ext.Ka.9).

The case was committed to the Court of Session and thereafter the VIth Addl. Session Judge, Bareilly charged the accused persons u/s 148 and 302 read with Section 149 IPC. They pleaded not guilty and claimed trial.

In order to prove charge the prosecution has examined 6 witnesses in all. Ranveer Singh (PW-1) is maker of the FIR. He is real brother of the deceased Jagdish Singh and is an eye witness. Munna Lal (PW-2) is an eye witness. Rest witnesses are formal in nature as referred herein before.

Accused in their statements u/s 313 Cr.P.C. have denied their involvement in the occurrence and claimed false implication in the case. No defence was adduced by them.

The trial Judge after recapitulating the entire evidence has recorded finding of conviction and sentenced the accused persons. Hence the appeal.

We have heard Sri Satish Trivedi, learned Senior Counsel assisted by Sri A.K. Pandey, learned Counsel for the appellants, Sri A.K. Dwivedi, learned A.G.A. for the State and perused the entire record.

Submission by learned Counsel for the appellants:

The ante mortem injuries No. 1 & 2 could not be caused by the fire arm as alleged by the prosecution Dr. S.K. Khare (PW-4);

Dr. S.K. Khare (PW-4), who conducted the postmortem, has found stomach of the deceased empty which suggests that he was murdered in wee hours and the assailants could not be identified;

Appellant accused Nirankar Singh was below 18 years when the alleged occurrence was said to have taken place and he is entitled for protection as given u/s 20 of the Juvenile Justice (Care and Protection of Children) Act, 2000 as amended by the Amendment Act, 2006.

Entire incriminating circumstances were not put to the accused persons as required u/s 313 Cr.P.C.

Learned A.G.A. would submit that it is broad day light murder with promptitudiness in FIR and there was motive to commit murder of Jagdish Singh and there is no violation of Section 313 Cr.P.C.

Now we shall ponder over the submission made by the learned Counsel for the appellants point-wise by meticulously examining the prosecution evidence.

POINT No. 1: Dr. S.K. Khare (PW-4) while conducting postmortem on the dead body of Jagdish Singh found the following ante mortem injuries No. 1 & 2 beside other ante mortem injuries totalling 10 in number.

Ante mortem injury No. 1: Incised wound 20 cm x 12 cm x brain cavity deep on the left side of the fore head to the occipital region. The skull bones are broken in pieces.

Ante mortem injury No. 2: Incised wound 7 cm x 3 cm x bone deep on the right frontal region connecting injury No. 1 obliquely.

Other ante mortem injuries which are gun shot wound of entry and exit could be caused by fire arm shots and it has not been disputed by the learned Counsel for the appellants. Ante mortem injury No. 2 is connecting injury No. 1. It is on the right frontal region whereas injury No. 1 is on occipital region. In "Naksha Naash" (photo of the dead body prepared by the Investigating Officer) location of these injuries has been shown. Both injuries in outward appearance are separate and located at 2 places. Doctor has found both injuries inter connecting. Injury No. 2 is obliquely placed. We could note that in injury No. 1 the skull bone are broken in pieces. In internal examination skull bones were found broken in pieces. Brain found lacerated and coming out of skull. Doctor has been dubbed hostile by the prosecution on this point that both the injuries could not be caused by the pellets strike. In cross examination by the prosecution he has admitted this fact that in case of injury caused on bony part by blunt object it would give appearance of incised wound. He has also admitted this fact that pellet itself is a blunt object. He has not noted down margins of the injuries. In the inquest report the Investigating Officer has noted one lacerated wound on the forehead of the deceased. It is not prosecution case that the accused persons were armed with sharp edged weapons. It is consistent case of the prosecution that shots were fired from the D.B.B.L. and S.B.B.L. Gun. Ranveer Singh (PW-1) and Munna Lal (PW-2) have also supported this fact. Learned Counsel for the appellants has submitted that the injuries No. 1 & 2 could be caused by heavy cutting weapon like Gandasa, axe etc.

In Modi''s Medical Jurisprudence (23rd Editioin) character of an incised wound or slashed wound has been given.

Owing to the retraction of the divided tissues, an incised or slash wound is always broader than the edge of the weapon causing it.

It is somewhat spindle-shaped and gaping.

In the middle of wound, the depth is more and wider gaping.

This gaping is greater in deep wounds when the muscle fibres have been cut transversely or obliquely.

Its edges are smooth, even, clean-cut, well-defined and usually everted.

The edges may be inverted, if a thin layer of muscular fibres is closely united to the skin, as in the scrotum.

The edges may be irregular in cases where the skin is loose as in axilla and abdominal wall or the cutting edge of the weapon is blunt, as the skin will be puckered in front of the weapon before it is divided.

Its length is greater than its width and depth.

The length of the incised wound has no relation to the length of the cutting edge of the weapon as it can be drawn to any extent, but it may give some idea of the depth of penetration.

The commencement of the wound is deeper and gradually becomes shallower and ending in a tailing scratch.

At page 700 with heading "Incised looking wound" it is given that:

Occasionally, on wounds produced by a blunt weapon or by a fall, the skin splits and may look like incised wounds when inflicted on tense structures covering the bones, such as the scalp, eyebrow, iliac crest, skin, and perineum, or by a fall on the knee or elbow when the limb is flexed. But the edges of such wounds will be found irregular with a certain amount of bruising, and small strands of tissues may be seen at the bottom bridging across the margins, if examined with a hand lens. In the case of wounds of the scalp, the hair bulbs will be found crushed, if they are inflicted with a blunt weapon, but will be found cut and forced into the wound, if produced by a cutting weapon like a heavy edged axe or a chopper.

Looking into characteristic of the Incised wound and "Incised looking wound" and nature of ante mortem injuries No. 1 & 2 along with internal damage in the skull bone it our definite opinion that this sort of injury was not possible by any cutting weapon or blunt weapon and due to error of observation of the doctor he was of opinion that the ante mortem injuries No. 1 & 2 could not be caused by strike of pellets. Even an injury caused by a blunt object on the head ordinarily produces a gapping wound, the edge of which if not carefully examined by a magnifying glass can be mistaken as an incised wound. Beside this, a blow given by a sharp cutting object does not usually caused fracture of bone into small pieces.

POINT No. 2: In the post mortem report (Ext.Ka.2) Dr. S.K. Khare (PW-4) has found stomach of the deceased "Empty". Small intestine and large intestine were found punctured at 4 places and 5 places respectively. Doctor has given opinion that death of the deceased Jagdish Singh could be caused on the date and time of alleged occurrence. Munna Lal (PW-2) who is child witness has admitted in cross examination that prior to the occurrence they had taken meal. Ranveer (PW-1) has admitted this fact that Jagdish Singh had eaten food an hour before the occurrence. They were not cross examined on this point what type of diet deceased had taken. Whether it was solid or in liquid form. Ranveer (PW-1) and Munna Lal (PW-2) have testified this fact that the deceased was murdered during noon. From cross examination of these witnesses there is not even an inkling to support that the deceased was murdered during night or wee hours. Blood was found on the spot and the Investigating Officer has shown point ''C'' in the site plan where plaster of the wall was found damaged due to fire shots along with pellet mark. These circumstances fully establish the place where Jagdish was murdered and time of murder has been disclosed by Ranveer (PW-1) and Munna Lal (PW-2) and promptness in lodging the FIR. Time of the occurrence finds support from the doctor''s evidence.

POINT No. 3: At the time of recording statement of accused Nirankar Singh his age is shown 19 years. His statement was recorded on 5.5.1981. Date of occurrence is 22.x.1979. Certainly on the date of occurrence he was below 18 years. At the relevant time children (Amendment) Act, 1978 was applicable. Children Act, 1951 by notification dated 23.11.1971 was made applicable to certain Districts of U.P. which does not include District Bareilly. To remove some inherent lacunae, the Children (Amendment) Act, 1986 was enforced on 1.12.1986.

The Juvenile Justice Act, 1986 was enforced with statement of object and reasons. The provisions came into force in different parts of the country which replace the corresponding law on the subject such as the Children Act and other enactments on the subject. Thereafter the Juvenile Justice (Care and Protection of the Children) Act, 2000 was introduced repealing the entire Act of 1986. This act was further amended by the Amendment Act, 2006 and the Juvenile Justice Rules 2007. The very scheme of the Act is rehabilitatory in nature. Juvenile Justice Act, 1986 was dealing with children upto 16 years of age but Amending Act 2000 prescribe the age on the date of commission of offence below 18 years (i.e. who has not completed age of 18 years) Section 2(k) of the act defines a Juvenile or Child as a person who has not completed eighteenth years of age. Section 2(l) defining "Juvenile in conflict of law" has since been amended in 2006 and now it provides that age at the time of commission of offence is relevant.

As amended, Section 2(l) reads:

2(l) "Juvenile in conflict with law" means a Juvenile who is alleged to have committed an offence and has not completed eighteenth years of age as on the date of commission of such offence.

Section 20 and 64 of J.J.A (Juvenile Justice Act) 2000 were amended in 2006 and a proviso and an Explanation were added to each.

Proviso and the Explanation of Section 20:

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 (l) 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.

Proviso and the Explanation to Section 64 read as follows:

Provided that the State Government, or as the case may be the Board, may, for any adequate and special reason to be recorded in writing, review the case of a juvenile in conflict with law undergoing a sentence of imprisonment, who has ceased to be so on or before the commencement of this Act, and pass appropriate order in the interest of such juvenile.

Explanation- In all cases where a juvenile in conflict with law is undergoing a sentence of imprisonment at any stage on the date of commencement of this Act, his case including the issue of juvenility, shall be deemed to be decided in terms of Clause (l) of Section 2 and other provisions contained in this Act and the rules made there under, irrespective of the fact that he ceases to be a juvenile on or before such date and accordingly he shall be sent to the special home or a fit institution, as the case may be, for the remainder of the period of the sentence but such sentence shall not in any case exceed the maximum period provided in Section 15 of this Act.

A simple reading of Section 20 shows that it applies the following conditions are fulfilled;

The accused was less than 18 when he committed an offence;

His case is pending at trial, revision, appeal or other criminal proceedings.

The law as now crystallised on a conjoint reading of Section 2(k), 2(l), 7-A, 20 and 49 read with Rules 12 and 98, places beyond all doubt that all persons who were below the age of 18 years on the date of commission of the offence even prior to 1.4.2001, would be treated as Juvenile, even if the claim of Juvenility was raised after they had attained the age of 18 years on or before the date of commencement of the Act and were undergoing sentence upon being convicted.

In Hari Ram v. State of Rajsthan and Ors. JT 2009(8) SC 47 the apex court has considered Aims and Objects of Juvenile Justice (Care and Protection of Children) Act, 2000 and has held that the very scheme of the Act is rehabilitatory in nature and not adversial which the courts are generally used to. The implementation of the said law, therefore, requires a complete change in the mind set of those who are vested with the authority of enforcing the same, without which it will be almost impossible to achieve the objects.

In case Balu alias Bakthvatchalu v. State of Tamilnadu (2009) 2 SCC(Crl) 829, the apex court has held that the trial Judge should be directed to hold the enquiry in regard to the age of the appellant on the date of commission of the offence and if it is found that the appellant was a Juvenile, within the meaning of provision of the Juvenile Justice Act, 1986, he should proceed with the matter in accordance with law.

Pratap Singh v. State of Jharkhand and Ors. 2005 (3) JIC 129 (SC) is an authority wherein it has been held by the apex court that reckoning date of a Juvenile is the date of an offence and not the date of production. This was followed in Bijender Singh Vs. State of Haryana and Another, Satbir Singh and Others Vs. State of Haryana,

In relation to Pratap Singh (Supra) two proposition, the apex court observed in Hari Ram (Supra) that the first proposition that the age on the date of commission of offence determined the applicability of the Act got Crystallised by the amended Section 2(L). The second proposition that the Act applied of the Juvenile was below the age of 18 years on the date of enforcement of the Act, however, was neutralised by the amendmment in 2006.

Rule 12 of the Model rules, 2007 lay down in detail the evidence to be taken into consideration in determining age. Rule 98 permits the State Government or the Board to review case disposed of in contravention of the provision of the Act or Rules either suo moto or on an application received in this behalf for determining Juvenileity appropriately according to the provisions of the Act and the Rules:

The amended provisions and the Rules are a step in the direction of increasing protection to children.

Pratap Singh case (Supra) is now no more a good law since the amendment of J.J.A 2000 three years ago in 2006. Hari Ram (Supra) has cleared the confusion created by many judgments given since the amendment of JJA in 2006.

Considering legal position regarding "Juvenile" we are of opinion that accused appellant was below 18 years on the date of alleged occurrence.

POINT No. 4: It is submitted by learned Counsel for the appellants that the trial court has not put incriminating circumstances to the accused in order to explain it as is required u/s 313 Cr.P.C. He has referred following rulings of the apex court.

Motilal and Ors. v. State of Rajasthan JT 2009 (8) SC 64

In this case the apex court has considered effect of non compliance of Section 313 Cr.P.C. and is held requirement u/s 313 Cr.P.C. is not an empty formality. The object of examination under this section is to give the accused an opportunity to explain the case made against him.

Shaikh Maqsood (2009) 2 SCC (Crl) 82

It was found in this case that no question was put to the accused u/s 313 Cr.P.C. which established that he was author of the crime.

Section 313 Cr.P.C. gives power to the court during inquiry or trial to examine the accused in order to enable him personally to explain any circumstance appearing against him. The Court -

(a) may at any stage without previously warning the accused put such question to him as the court considers necessary;

(It is directory provision)

(b) shall, after the witnesses for the prosecution have been examined and before he is called on for his defence, question him generally on the case; (This part is mandatory).

In view of rulings of the apex court examination of the accused u/s 313 Cr.P.C. is not mere "formality".

Now we shall examine statements of the accused persons recorded by the trial court u/s 313 Cr.P.C.

The trial court has framed 6 questions which were put to the accused persons while examining them u/s 313 Cr.P.C.

Question No. 1 relates to motive, No. 2 about the occurrence, No. 3 about lodging the FIR, No. 4 about recovery of blood on the spot, No. 5 about the witnesses (without naming them specifically) and No. 6 is general question. All accused gave statement that question No. 1 is correct but stated that question No. 2 is not correct, not aware about question No. 4 and 5 but stated about question No. 6 that all witnesses are related to each other and are inimical with the accused. It appears from this statement that the accused persons were well informed about the witnesses and evidence given by them. This case is based on direct evidence and entire incriminating circumstances were put to the accused persons to explain and in fact they explained. We found no prejudice was caused to the accused persons and they were fully aware about evidence led by the prosecution hence we are not impressed with submission of the learned Counsel that Section 313 Cr.P.C. was not complied with in real sense.

Motive has been given in the FIR and it is also narrated by Ranveer Singh (PW-1) and Munnalal (PW-2) that deceased Jagdish Singh was real brother of Ranveer Singh. He was involved in murder of Badshah Singh. Accused Onkar Singh and Nirankar Singh are sons of Badshah Singh. Accused Krishna Pal alias Mulla and Hari Babu are cousins of Onkar Singh. Accused Sheo Pal is their friend. This fact has been disclosed by Ranveer Singh. Due to murder of Badshah Singh accused Onkar Singh and Nirankar Singh felt severe enmity. Even two brothers of Ranveer Singh were murdered in the occurrence in which Badshah Singh was murdered. Complaint case was filed from side of Ranveer Singh. Both sides were bound down u/s 107/116 Cr.P.C. In statement u/s 313 Cr.P.C. the accused persons have admitted this fact that in murder of Badshah Singh, the deceased Jagdish Singh was an accused.

Ranveer Singh (PW-1) has given ocular testimony supporting the FIR version. He had identified the accused persons in the spot and his presence on the spot is not doubtful. Munnalal (PW-2) is a child witness but he understood sanctity of oath hence oath was administered to him. He is son of Ram Katori and has thoroughly corroborated the prosecution story and named all the accused persons. FIR was lodged promptly. The suggestion of the defence that murder of Jagdish Singh was committed in dark hours of night can be safely ruled out. There is consistent evidence of both the eye witnesses. If Munnalal had taken shelter of the police, then it does not mean that he was tutored witness. Munnalal has specifically denied about tutoring. He has admitted enmity with the accused but he was of tender age when his father was murdered and this could not be reason to falsely depose against the accused persons. This is broad day light murder case. Presence of eye witness on the spot cannot be doubted. Witnesses react in their own way. When fires were shot it would be natural for the witnesses to save themselves in order to avoid wrath of the accused persons. Merely because both the eye witnesses are interested witnesses, their testimonies could not be disbelieved.

In Sonelal v. State of M.P. AIR 2009 SC 760 it is held by the apex court that merely because the eye witnesses are family members their evidence cannot perse be discarded. Relationship is not a factor to effect credibility of a witness. It is more often than not that a relation would not conceal real culprit and make allegation against innocent person. The court has to adopt a careful approach and analyse evidence to find out whether it is cogent and reliable.

In Dalip Singh and Others Vs. State of Punjab, it has been laid down as under:

A witness is normally to be considered independent unless he or she springs from sources which are likely to be tainted and that usually means unless the witness has cause, such as enmity against the accused, to wish to implicate him falsely. Ordinarily a close relation would be the last to screen the real culprit and falsely implicate an innocent person. It is true, when feelings run high and there is personal cause for enmity, that there is tendency to drag in an innocent person against whom a witness has a grudge along with the guilty, but foundation must be laid for such a criticism and the mere fact of relationship far from being a foundation is often a sure guarantee of truth.

After close scrutiny of evidence of Ranveer Singh (PW-1) and Munnalal (PW-2) which is supported by medical evidence we are of firm opinion that the prosecution has proved its case beyond shadow of doubt.

To repeat and recapitulate use to present an over view of the fact situation, we see no ground to interfere in the finding of conviction recorded by the trial court.

Appellant Onkar Singh and Sheo Pal Singh died during pendency of appeal and appeal stands abated against them.

Appellant accused Nirankar Singh alias Pappu was below 18 years on the date of occurrence as is clear from his age mentioned while recording his statement u/s 313 Cr.P.C. Two options now left open for us. First option is to refer the matter to trial court for determining his age and second option is to restrict his sentence to the period already undergone in jail.

As far as the determination of age is concerned, in normal circumstances, we would have referred the matter to trial court but as discussed above, the age of the appellant has already been recorded by the trial court. It is an appeal of 1981. Occurrence relates to year 1979. The appellant was below 18 years at the time of the incident.

In Satish @ Dhanna Vs. State of M.P. and Others, it was observed by the apex court that Section 20 of the Juvenile Justice (Care and Protection of Children) Act, 2000 provides for special provision in respect of pending cases. The accused who was juvenile cannot be denied the benefit of provision.

Appeal is a continuous proceeding and Section 20 is made applicable to the pending appeal hence it would be in the interest of justice we would have no option than to modify the sentence awarded to the convict. Keeping in view the procedure adopted by the apex court in case Satish alias Dhanna (Supra) sentence of Nirankar Singh appellant is liable to be modified to the period already undergone in jail.

Appeal is dismissed. Finding of conviction recorded by the trial court is affirmed by us and we also affirm sentence awarded by the trial court to the appellant Krishna Pal alias Mulla and Hari Babu but sentence of the appellant Nirankar Singh is modified to the period already undergone in jail. Bail of the appellants cancelled and sureties of Nirankar Singh stand discharged. Appellants Krishna Pal alias Mulla and Hari Babu shall surrender before the C.J.M. Bareilly within 10 days failing which steps shall be taken to send them to jail in order to serve out the sentence imposed by the trial court and affirmed by us. Appellant accused Nirankar Singh shall not surrender.

Office is directed to certify the judgment to the court concerned immediately for immediate compliance.