Prem Singh and Ors. vs State

On 23.5.1972 a verbal report was lodged by the complainant Beeta Ram with the police Station, Khour that at 10 PM in the preceding night when

he was coming back from his fields towards his home, he heard some noise coming from the roof of Tara Chand's house. On reaching there, he

found that the accused Inder Singh and Prem Singh residents of Matto were abusing his brother Isher Dass. Meanwhile, Baj Singh, Kamal Singh

and Kaka Ram were also attracted by such noise on the spot. Both the accused pounced upon his brother' who was thrown down on the roof of

the said house. He raised a cry that they had killed him and asked for help. Both the accused were coming down from the stairs, and ran away.

PW Kamal Singh ran after the accused Prem Singh, and Baj Singh ran after Inder Singh, so as to catch hold of them, but they could not lay their

hands on them. His brother came down from the roof with great difficulty and was holding his belly with his hands. He was able to say only that

Inder Singh and Prem Singh had stabbed him and Prem Singh had caused some injuries on him with his knife. On this a case was registred against

the accused and the Committal Magistrate, committed them to sessions to stand a trial. On trial of the case, the appellants ""hereinafter referred to

as the accused"" were convicted Under Section 307 read with Section 34 RFC and sentenced to undergo three years rigorous imprisonment each

for the offence U/3 307 read with Section 34 RPC.

Aggrieved of the said order of conviction and sentence, an appeal has been preferred by the accused assailing the judgment of the trial court on the

ground that the judgement of conviction and sentence recorded by the trial court against the accused, is against law and facts of the case, and is

liable to be set aside. That the judgment of the trial court is, exfacie, without jurisdiction and illegal, in as much as, that the trial court had no

jurisdiction to hear and decide the case, as the accused Prem Singh was minor on the alleged day of occurrence i e. 23.5.1972, and continued to

be so till the challan was produced in the Court, In view of Section 24 of the Children Act, the said accused was not required to be tried along

with second accused and whole of the proceedings taken in the case are, therefore, without jurisdiction and are liable to be set aside. Even

otherwise, there was no cogent evidence against the accused, and the occurrence is alleged to have taken place in darkness. No independent eye

witness had identified the accused to show that the assailants had inflicted the injuries on the person of Isher Dass. It is the admitted case of the

prosecution that some tractor drivers who were the independent person were present on the spot, and none of them has been produced by the

prosecution and this omission is fatal to the prosecution case and no conviction could be validly recorded against the accused on that score. That

the accused were never afforded an opportunity to lead evidence in defence, and they have been deprived of a valuable right available to them

Under Section 274 of the Cr. P.C. That there was no legal evidence worth the name against the accused, and no identification parade had been

conducted by the Investigating Agency, particularly, when there was no independent eye witness to identify the accused as to whether they had

inflicted injuries on the person of Isher Dass ?

Heard Mr J. P Singh for the accused and Mr R. C Gandhi AAG on behalf of the respondent/State; also had a thoughtful consideration over the

record on the file.

At the outset, on the statement of the accused Prem Singh recorded by the committal court on 20.1.1973 and the trial court on 30.5.1974, it

becomes manifestly proved that the age of the accused Prem Singh was 14 years and some months, at the time the occurrence took place on

235.1972. No evidence has been recorded either by the committal Magistrate or the trial court, in order to ascertain as to whether the age

provided by the accused was below 16 years at the time the occurrence took place. No observation has been made by the trial court to ascertain

by general appearance or by physical examination to have been got conducted by a Radiologist that the age of the accused was above 16 years at

the time of occurrence took place, rather there is unrebutted version of the said accused that his age at the time of occurrence was about 14 years

and three months. In this regard, we have on record the statement of the said accused, made by him both before the committal court dated

20.1.1973 and before the trial court on 30.5.1974, which are uncontroverted and show that he was plus 14 years of age on the date of the

occurrence.

Section 2 (d) of the J&k Children Act, 1970, defines that ""child means a boy who has not attained the age of 16 years, or a girl who has not

attained the age of 18 years."" Taking into account the age of the accused Prem Singh as recorded by the committal and trial courts, and which

remained unrebutted both during the committal and proceedings as well as during the trial of the case, I am fully convinced that the accused Prem

Singh was a child within the meaning of the said section of the Children Act on the date of commission of the said offence.

Section 22 of the aforesaid act says that notwithstanding anything to the contrary contained in any other law for the time being in force, no

delinquent child shall be sentenced to death or imprisonment, or committed to prison in default of payment of fine or in default of furnishing of

security.

Section 24 of the said Act provides that notwithstanding anything contained in Section 239 of the Cr. P.C. 1989. or in any other law for the time

being in force, no child shall be charged with or tried for any offence together with a person who is not a child. The said section further provided

that if inspite of the prohibition contained in clause (1) of the said section, a child has been charged and tried together with any other person who is

not a child the Court taking cognizance of that offence shall direct separate trials of the child and the other person.

So that, it emerges that if was imperative upon the trial court to split the challan and ask for a separate trial of the accused in a competent court of

law i.e. the Children's Court, for whom a special procedure is contained Under Section 21 of the Act as to how a child is to be dealt with, after the

Children's Court had become satisfied that he had committed an offence.

In view of the said speaking provision of law as contained under Section 22 of the Children Act, accused Prem Singh who was a delinquent child

could not be sentenced to imprisonments by the trial court. Also, he could not be charged and tried for any offence together with other accused,

who was not a child as contemplated U/S 24 of the said Act. As the trial of the 1st accused has taken place contrary to the said provision 22 and

24 of the children Act, therefore, all the proceeding taken against him by the trial court including his sentence is vitiated, and set aside.

Now on merits, it is evidently found from the statement of the complainant Beeta Ram that he is not an eye witness to the occurrence, he has

categorically stated that he was standing near the stairs and his in brother was present on the roof of the house. He did not go upstairs od the roof

and neither Baj Singh and Kamal Singh went there When they reached near the stair case, the injured came down and the accused ran away the

spot. PW Isher Dass (victim in the case) has resiled from his statement made by him before the committal court, wherein be had stated that two

tractor drivers were present in the house of Tara Chand and he went there to enquire as to when his turn would come for ploughing the land. As a

witness before the trial court, he contradicted his statement to say that the statement which was made by him before the committal court was

wrong and the one he made before the trial court was correct This witness who has resiled from his statement made in the committal court, before

the trial court and has materially deviated from his earlier statement, is not a reliable person and credit worthy to be believed, unless corroborated

by the independent witnesses to prove the credibility of the prosecution story, as set out by the prosecution. The occurrence has taken place in the

dead of the night, and no identification parade was conducted by the police, enabling witnesses to get the accused identified. As no identification

parade has taken place, therefore, all the witnesses who have come to say that the accused inanymanner committed the crime, are not credit

worthy, for they have not seen the occurrence with their own eyes. The only evidence available on the record is that of Isher Dass. who has stated,

that he was attacked by the accused, in presence of two tractor drivers, but those tractor drivers have not been examined by the proseccution, for

the reasons best known to them. They were the only witnesses, who could narrate the whole incident in its right perspective, so as to show how

and what for the occurrence took place The only evidence put forth by the prosecution against the accused persons was that the witnesses Beeta

Ram, Baj Singh, Kamal singh and kaka Ram had found the accused coming down from the house of Tara Chand where the occurrence had taken

place, that in itself, is not sufficient to eatablish that the accused were the assailants, who had attacked the complainat, especially, when there was a

previous enmity between the parties on account of some dispute over some land between the parties. Isher Dass has stated in his statement that he

had gone to the house of Tara Chand to enquire from the tractor drivers, who were living in that house, as to when his turn for hiring a tractor

would come, and that he found certain people there, and the accused abused him and fell upon him and gave beating to him and inflicted injuries on

his person. He did not mention as to who those people were, so that they could be cited as prosecution witnesses and examined to prove that the

accused were the assailants. There is no proof on the file to show that the accused were vividly indentified in the dead of the night by the above

mentioned witnesses, when according to PW Beeta Ram, it was a moonlight night. There is no evidence on the file to show that it was a moonlight

night, and the accused were identified by the witnesses prominently.

A strange reasoning has been provided by the learned trial court to say that, as the tractor drivers had told the Investigating Officer that the incident

had not taken place in their presence, therefore, he did not cite them as witnesses. It was not within the parlance of the Investigating Officer not to

cite them as witnesses or collect their evidence, once they had seen the occurrence with their eyes. As they had been held back, there is a

presumption drawn under Section 14 (f) of the Evidence Act, that if examined, they would have spoken against the prosecution. Their non

production as witnesses by the prosecution or non collection of their evidence by the Investigating Officer, shows that they would have spoken

against the prosecution and, therefore, the story as set out by the prosecution about the incident, is not correct, In such circumstances, nobody

knows as to in what circumstances the occurrence has taken place, may be a free fight might have ensued between the parties and the complainant

in order to give it colour of authenticity, has tried to show that there was no participation of the injured in that, and, therefore, a case was

developed that the accused beat him unnecessarily upon the roof of Tara Chand in the dead of the night. It is stated by the prosecution witnesses

that many houses are situate around ihe place of incident, but none of the neighboured has been cited as a witness by the Prosecution, nor any of

them has been named as a witness, who has seen the occurrence. Nodoubt, the doctor witness has given the evidence that the injuries could be

caused by a sharp edged weapon as well, which has been seized in the case, but that does not in itself prove the case against the accused, as it is

not pointly pioved by the prosecution evidence as mentioned above that the accused were the persons who gave beating to the complainant.

It is a beaten point of law that to constitute an offence u/s 307 RPC, the intentional knowledge must be such as is necessary to constitute murder;

witout this there can be no attempt to murder. The intention has to be gathered from the nature of the weapon used, and the parts of the body

where the injuries are inflicted. The trial court had to see whether any evidence was produced by the prosecution in support of their case than the

accused committed the offence alleged and whether that evidence is legal and reliable ? It is not toe quantity but the quality of the evidence that had

to be considered by the learned trial court. In the case on hand, it is found that the trial court has taken the quantity of the evidence into

consideration, when, all the witnesses excepting the injured have stated that they have seen the accused coming down from the house of Tara

Chand, and, as the injared had also come down after them, therefore, it was attributed that the accused were the assailants with regatd to which

the injured was saying that he was attacked by them. It is in the evidence of the victim Isher Dass that besides the tractor drivers, there were

several other people standing on the roof of the house of Tara Chand, but he could not nominate any of them as to who those psople were, in

those presence the assailants attacked him, when the tractor driven ware stinding ir the corner of the roof ? The very evidence of the victim is

suspicious and he has not categorically made it known as to when and in what form, the occurrence took place, and the trial court has not also

tried to evaluate the evidence in there circumstance of the case, as to the tractor drivers have not been produced by the prosecution, who ware the

most important witnesses of the occurrence ? It was the bounden duty of the prosecution to examine such material witnesses in the case. As such,

the inference drawn is that if produced, they would have spoken against the prosecution. The complainant and the witnesses have been so

overzealous in the conviction of the accused that they did not even mention before the trial court that one of the accused was a minor. They did not

even try to get his age determined by the Court for the purposes of prosecution, resulting in wrong trial of the accused Prem Singh, as result of

which, his trial before the trial court, has been vitiated. The prosecution case is full of contradictions, and no cogent and plausible evidence has

come forth to repose confidence in the mind of this Court to say that the view taken by the trial court was correct, and he has correctly convicted

and sentenced the accused on reliable and credit worthy evidence, when their demeanour was not shaky and unbelieveable.

It won't be out of place to mention here that the accused have been constantly sustaining the trial for the last twenty years, and having regard to the

full bench ruling reported in AIR; 1986; Patna; 324, I feel, it is one of the cases which falls in the fixation of outer limit of seven years, with regard

to the trial of an accused as fixed by the said High Court. In that case, it has been held that beyond this period of seven years, the continuation of

investigation and trial against an accused, would be in the weightiest presumption enshrining the right of speedy public trial, is violated, and the

prosecution shall be halted in its tracks. In view of the above case law, the accused are entitled to the benefit of acquittal on this score as well, as

they have sustainend the trial for twenty years till now.

Having regard to all the circumstances of the case mentioned hereinabove, the accused shall be and are acquitted of the charge levelled against

them. The file be returned to the trial court, for consigning the same to records. The appeal file be consigned to records.