Prem Singh alias Prem and another vs The State of Punjab

B.S. Dhillon, J.—Briefly stated the prosecution case is that Mohinder Pal P.W. along with his brother Shiv Charan deceased and Tara Chand P.W. was going from the house to Durgiana Mandir at Amritsar to see Ragh Sabha on 1.3.1980 At about 10.45 P.M. when they reached near the house of Vishwa Nath, Gali Khatikan in side Lohgarh Gate, they saw Prem and Janki appellants coming, in the street light armed with Chhuris raising Changers under the influence of liquor. Mohinder Pal and his companions requested the accused to desist from raising Changers but they did not pay any heed. On the other hand, they told then that how could they ask them not to raise the Changers. At this Shiv Charan told the accused that it was their Mohalla and that they should not misbehave. At this Janki appellant gave a Chhuri blow to Shiv Charan which hit him in front of his chest. Prem then gave a Chhuri blow to Shiv Charan which hit him at the left side of his chest and then he fell down. Janki then gave him another blow with his Chhuri hitting him at his right thigh Mohinder Pal and Tara Chand raised Raula and the appellants then fled away from the scene. Shiv Charan died on the spot.

The first information report was lodged by Mohinder Pal P.W. 2, brother of Shiv Charan deceased, at 11.30 P.M. on the same day and the special report reached the Magistrate at Amritsar at 5.00 A.M. on 2. 3. 1980.

Dr. Gurdip Kumar Uppal, (P.W. 1) conducted the post mortem examination on the dead body of Shiv Charan deceased on 2. 3. 1980 at 12.30 P.M. and found the following injuries on his person:--

Incised stab wound 2� cm � 1� cm on the front of rt. side of chest at 2.0 Clock position from the nipple and 8 cm media to the right nipple and 11 cm below the right sternoclavicular joint.

Incised stab wound 3 cm x 1� cm on the front of left side of the chest, 7 cm above the left nipple at 12 O'' clock position.

Incised stab wound 2 1/2 cm x 1 1/2 cm on the lateral aspect of right thigh in its upper one third. On dissection the wound was muscle deep.

Injuries Nos. 1 and 2 were individually sufficient to cause death in the ordinary course of nature. Death in the opinion of the Doctor was due to shock and haemorrhage as a result of injuries Nos. 1 and 2.

The eye-witness account of the occurrence was given at the trial by Mohinder Pal and Tara Chand P.Ws. The learned trial Judge taking into consideration the evidence on the record, recorded a finding of guilt against the appellants and convicted them for an offence u/s 302 of the Indian Penal Code and sentenced them to undergo imprisonment for life and to pay a fine of Rs. 5.00/- each and in default of payment of fine they have been ordered to undergo further imprisonment for six months each. Since both the appellants were found to be children therefore, the case was referred to the State Government to take decision u/s 34(2) of the East Punjab Children Act, 1949 (hereinafter referred to as the Act).

After hearing the Learned Counsel for the parties and going through the record we are of the opinion that there is no merit in this appeal. The occurrence took place in the Abadi of the Mohalla and both the P.Ws. reside in the same Mohalla. It is no doubt true that Mohinder Pal P.W. is the brother of the deceased but that alone is not sufficient to discard his testimony. It is in evidence that the Ragh Sabha was being held in Durgiana Mandir and the same was to be continued till late at night. The P.Ws. and the deceased left their house for attending the Ragh Sabha. There is nothing unnatural in the presence of both the eye-witnesses at the time and place of occurrence. The contention of the learned defence counsel that there is unexplained delay in lodging the first information report is without any merit. The occurrence took place at about 10.45 P.M. and the first information report was lodged at about 11.30 P.M. or 12 mid night by Mohinder Pal P.W. The special report reached the Magistrate during the same night at 5-00 A.M. at Amritsar. There is no unexplained long delay in lodging the first information report. Even if there be a little delay, that would only put the Court at caution while appreciating the eye-witness account of the occurrence but it will not be fatal to the prosecution case by itself. As already observed, the presence of the eye-witnesses at the time and place of occurrence is natural.

The contention of the learned defence counsel that if the eyewitnesses were present they could apprehend the appellants is again without any merit. When the deceased was given blows with the Chhuries at the spur of the moment without any altercation having taken place, the P.Ws. naturally felt shocked and thus after giving blows if the appellants ran away from the place of occurrence, there is nothing unnatural. The P.Ws., who were empty handed, and one of their companions having been fatally injured by the appellants, who are armed with Chhuris could not take the risk to run after the appellants so as to endanger their own lives. No material contradiction could be pointed out by the Learned Counsel so as to discard their testimony. Nothing has been brought on the record to show that the P.Ws., had any background of enmity with the appellants so as to falsely name them as culprits if the appellants were not the culprits and if the eyewitnesses had not actually witnessed the occurrence. If it was a blind murder it is not possible to conceive as to how the appellants came to be named within such a short time of the commission of the offence as nothing has been brought out in the cross-examination to show that there was any reason to suspect the appellants and to falsely implicate them if the occurrence had not been witnessed by the eye-witnesses We are, therefore, satisfied that both the P.Ws. have seen the occurrence and their testimony being truthful, we have no reason to take a different view of the evidence than the one taken by the learned trial judge.

The learned trial Judge on the basis of the evidence produced on the record came to the conclusion that both the appellant are children within the meaning of the Act. It has been vehemently contended by Shri Harbans Singh, the Learned Counsel for the defence, that since the appellants are children within the meaning of the Act, therefore, they should be given the benefit of the provisions of section 42 of the Act. It has been prayed that a direction be issue that the appellants be freed from detention on their attaining the age of 18 years. We are unable to agree with this contention. With a view to appreciate the legal position in this regard, it would be necessary to make reference to the relevant provisions of the Act. Section 3(c) of the Act defines child, which is as follows :--

In this Act unless there is anything repugnant in subject or context:--

(c) ''Child'' means a person under the age of 16 years, and when used with reference to a child sent to a certified school applies to that child during the whole period of his detention, notwithstanding that the child may have attained the age of 16 years.

Part II of the Act deals with measure for the custody and protection of children who are destitute etc. Part IV deals with the youthful offenders. Section 27 of the Act, which deals with sentences that may not be passed on the children, is as follows:--

Notwithstanding anything to the contrary contained in any law, no person who was child at the date of the commission of the offence shall be sentenced to death or transported or committed to prison for any offence or in default of payment of fine, damages or costs.

Provided that a child who is fourteen years of age or upwards may be committed to prison where the court certified that he is of so unruly or of so depraved a character that he is not a fit person to be sent to a certified school and that none of the other methods in which the case may legally be dealt with is suitable.

Section 29 of the Act deals with the commitment of child to a certified school.

Section 34 of the Act is as follows: --

(1) When a child is found to have committed an offence of so serious a nature that the court is of opinion that no punishment which, under the provisions of this Act, it is authorised to inflict is sufficient the Court shall order the offender to be kept in safe custody in such place or manner as it thinks fit and report the case for the orders of the State Government.

(2) Notwithstanding the provisions of section 27, the State Government may order any such child to be detained in such place and on such conditions as it thinks fit, and while so detained the child shall be deemed to be in legal custody,

Provided that no period of detention so ordered shall exceed the maximum period of imprisonment to which the child could have been sentenced for the offence committed.

Section 35 of the Act provides the methods of dealing with children charged with offences, and sub-clause (e) of this section provides sentence by sending the offender to a certified school, as one of the methods of dealing with the children. Section 42 of the Act is as follows:-

The period for which a child or youthful offender is to be detained in a certified school shall be specified in the order in pursuance of which he is sent there and shall be such period not being less than two years in the case of a youthful offender who at the date of the order is over the age of fifteen years and three year in the case of other youthful of fenders as to the court may seem proper for his teaching and training but not in any case extending beyond the time when he will, in the opinion of the court, attain the age of eighteen years.

The consistent reading of the various provisions of the Act would go to show that the Act makes provisions for the custody and protection of destitute children and for the custody, and punishment of youthful offenders. Whereas it makes provisions providing methods for dealing with children charged with offences, it has also made provisions for measures for the custody and protection of the children who are destitute and who are not otherwise involved in any offence The reading of the provisions would show that in view of the provisions of section 35 of the Act, if a child charged with an offence is found to be guilty, the Court shall take into consideration the manner in which under the provisions of this or any other Act enabling the Court to deal with the case, the case should be dealt with. The methods of dealing with children charged with offences have been provided in clauses (a to i) of section 35. u/s 27 of the Act, no person who was a child at the date of the commission of the offence shall be sentenced to death or transported or committed to prison for any offence or in default of payment or fine, damages or costs. However, according to the proviso, a child who is 14 years of age or upwards may be committed to prison where the court certifies that he is of so unruly or of so depraved a character that he is not a fit person to be sent to a certified school and that none of the other methods in which the case may legally be dealt with is suitable. u/s 29 of the Act, where a child is found to have committed an offence punishable with transportation or imprisonment the court if satisfied on enquiry that it is expedient so deal with the child may order him to be sent to a certified school. u/s 34 of the Act if a child is found to have committed an offence of so serious a nature that the court is of opinion that no punishment which, under the provisions of this Act, it is authorised to inflict is sufficient, the Court shall order the offender to be kept in safe custody in such place or manner as it thinks fit and report the case for the orders of the State Government. Under sub-section (2) of the same sections, notwithstanding the provisions of section 27, the State Government may order any such child to be detained in such place and on such conditions as it thinks fit, and while so detained, the child shall be deemed to be in legal custody. However, no period of detention so ordered shall exceed the maximum period of imprisonment to which the child could have been sentenced for the offence committed. Section 42 of the Act deals with the period of detention in certified school and it has been provided that no child can be detained in a certified school beyond the age of 18 years.

It may thus he seen that under proviso to section 27 of the Act a child may be committed to prison where the Court certifies in accordance with the terms of the said proviso. u/s 34 of the Act, a child can be detained in such place and on such conditions as the State Government may think fit in case it is found by the Court that he has committed an offence of so serious a nature that no punishment which under the provisions of the Act is authorised to inflict is sufficient. However, the period of detention so ordered cannot exceed the maximum period of imprisonment to which the child could have been sentenced for the offence committed. If resort is not had to the proviso to section 27 or to the provisions of section 34 of the Act, in that case, the child has to be dealt with in accordance with the provisions of section 35 of the Act. It is clear that the destitute children may be taken into custody and be sent to the certified school and so also the convicted children. The provisions of section 42 of the Act apply to all types of children who are kept in certified school and it has been provided that no child can be detained in the certified school beyond the age of 18 years.

Shri Harbans Singh, the Learned Counsel for the appellants, relies on a Division Bench judgment of this Court in Joginder Pal v. The State of Punjab (1978) 5 Cri. L.T. 357, Pritam Singh v. The State of Punjab (1976) 3 Cri. L.T. 285, and Hari Singh v. The State of Punjab (1976) 3 Cri. L.T. 562, to contend that section 42 of the Act be made applicable. None of these authorities help the Learned Counsel for the appellants in all these cases, which have been decided on their own faces, no finding has been recorded that the provisions of section 34 of the Act were applicable and that being the case, resort was had to the provisions of section 42 of the Act. Reference may also be made to a Division Bench judgment C in Cr. W. No. 34 of 1972 decided on 6.4.1973 Narjit Singh son of Zora Singh vs. The State of Punjab and Gulzar Singh v. The State of Punjab etc. (1979) 6 Cri. L.T. 136, where similar view, as we are taking in this case, has been taken.

Having appreciated the legal position, we may observe that the learned trial Judge in this case recorded a finding that the provisions of section 34 of the Act are applicable to this case. It is no doubt true that the learned Judge further sentenced the appellants to undergo life imprisonment but that will not vitiate the finding recorded by him. The contention of the learned defence counsel that the provisions of section 34 of the Act may not be made applicable to this case is without any merit. The offence committed by the appellants is serious in nature both the appellants gave fatal injures each. Janki appellant gave another injury on the right thigh of the deceased. The learned trial Judge rightly came to the conclusion that the provisions of section 34 of the Act are applicable. We are also of the opinion that keeping in view the serious nature of the offence committed by the appellants, no punishment under the provisions of the Act is sufficient. Under the provisions of sub-section (2) of section 34 of the Act, it is up to the State Government to determine as to for how much time the appellants shall be detained and so also regarding the place where and the conditions on which they are to he detained. The observations of the learned trial Judge that the appellants are sentenced to life imprisonment are set aside as under the provisions of section 35(1) of the Act, the Court has to express its opinion and u/s 34(2) of the Act, it is the State Government who is to fix the period and place of detention and also the conditions of detention. Let this case be referred to the State Government, if not already referred, for passing appropriate orders in this regard.

For the reasons recorded above, this appeal is disposed of accordingly.