Rudal Yadav And Ors vs State Of Bihar

Both the above stated criminal appeals have been preferred against the common judgment of conviction dated 30.05.1994 and sentence order dated

01.06.1994 passed by learned 5th Additional Sessions Judge, Bhagalpur in Sessions Trial No. 159 of 1981 by which and whereunder he convicted all

the above stated six appellants for the offence punishable under Section 302 read with Section 34 of the IPC and furthermore, appellants Kartik

Yadav, Rudal Yadav, Subhas Yadav, Suresh Yadav and Gopal Yadav have been convicted for the offence punishable under Section 147 of the IPC

whereas appellant Arjun Yadav has been convicted for the offence punishable under Section 148 of the IPC. However, all the appellants have been

acquitted of the charge framed under Section 323 of the IPC and accordingly, all the six appellants have been sentenced to undergo rigorous

imprisonment for life for the offence punishable under Section 302/34 of the IPC. Furthermore, appellants Kartik Yadav, Rudal Yadav, Suresh Yadav,

Subhas Yadav and Gopal Yadav have been sentenced to undergo rigorous imprisonment for one year for the offence punishable under Section 147 of

the IPC and appellant Arjun Yadav has been sentenced to undergo rigorous imprisonment for two years for the offence punishable under Section 148

of the IPC. However, all the sentences have been directed to run concurrently. Since the above stated appeals have arisen out of common judgment

of conviction and sentence order, common judgment is being passed in both the above stated criminal appeals.

It is pertinent to note here that during pendency of above stated criminal appeals, appellant no. 2, namely, Arjun Yadav and appellant no. 3, namely,

Gopal Yadav in Cr. Appeal (DB) No. 303 of 1994 died and their appeal stood abated. Furthermore, it is also pertinent to note here that one

interlocutory application was filed on behalf of appellant no. 2, namely, Kartik Yadav in Cr. Appeal (DB) No. 353 of 1994 claiming himself juvenile at

the time of alleged occurrence and vide order dated 27.08.1997, a co-ordinate Bench of this court ordered that aforesaid plea of appellant no. 2 in Cr.

Appeal (DB) No. 353 of 1994 shall be considered at the time of hearing of above stated appeal.

In course of hearing, learned counsel appearing for the appellants claimed that appellant no. 1, namely, Rudal Yadav in Cr. Appeal (DB) No. 303 of

1994 and appellant no. 3, namely, Subhas Yadav in Cr. Appeal (DB) No. 353 of 1994 were also juvenile at the time of alleged occurrence but

unfortunately, the plea of their juvenility could not be raised earlier.

Briefly stated facts of the prosecution case are as follows:- PW-3 Chinta Devi gave her fard-e-bayan at State Dispensary, Sajour District

Bhagalpur on 14.09.1976 at 10:00 P.M. before the police officer to this effect that on the same day at about 8:00 A.M., while she was in courtyard of

her house along with her husband Chintaman Yadav (deceased) as well as her BHAISUR Govind Yadav (deceased), appellant Rudal Yadav started

removing CHHAPPAR of her hut which was protested by her husband Chintaman Yadav (deceased) but appellant Rudal Yadav abused her husband

and went to his house and later on, the aforesaid appellant Rudal Yadav along with other appellants as well as one Paddo Yadav being armed with

lathi, bhala and khanti came there and started assaulting her husband Chintaman Yadav and when Govind Yadav(deceased) came to his rescue, he

was also assaulted by the aforesaid persons. She, specifically, claimed in her fard-e-bayan that appellant Kartik Yadav gave a lathi blow over the head

of the deceased Chintaman Yadav as a result whereof he fell down on the ground and, thereafter, appellant Rudal Yadav and others assaulted him by

their respective weapons. She, further, claimed in her fard-e-bayan that appellant Suresh Yadav assaulted deceased Govind Yadav by lathi on his

back and hand and after that appellant Subhas Yadav gave lathi blow on the head of the deceased Govind Yadav as a result whereof Govind Yadav

also fell down on the ground. She further claimed that she also tried to intervene but appellant Gopal Yadav gave one lathi blow causing injury on her

hand. PW-3 further claimed that Mataru Yadav and other villagers including her GOTINI Pato Devi witnessed the alleged occurrence. She, further,

claimed that after the occurrence appellants as well as Paddo Yadav left the place of occurrence and thereafter, her husband Chintaman Yadav as

well as Govind Yadav were brought to Sajour hospital where her husband died and Govind Yadav was taken to Bhagalpur hospital.

On the basis of fard-e-bayan of PW-3, Shahkund P.S. Case No. 09 of 1976 under Sections 147, 148, 149, 302, 307, 323 of the IPC was registered

and accordingly, formal FIR was drawn up under the above stated sections against the appellants and Paddo Yadav.

PW-8 Raj Nandan Singh, the then Officer in Charge of Sahkund police station, got O.D. slip through chowkidar from Sajour hospital at 5:00 P.M.

on 14.07.1976 and entered sanha regarding the receipt of aforesaid O.D. slip. However, subsequently, he received injury reports from Sajour hospital

and on the same day, he went to Sajour hospital and recorded the fard-e-bayan of PW-3. This witness proved the fard-e-bayan of PW-3 as Ext. 5.

He took charge of investigation and recorded further statement of PW-3, inspected the place of occurrence, recorded the statements of witnesses and

in course of investigation, he learnt that Govind Yadav also died. However, after completion of investigation, he submitted charge sheet against the

appellants and FIR named accused Paddo Yadav. The case was committed to the court of sessions after cognizance and accordingly, appellants along

with Paddo Yadav were put on trial. All the appellants including FIR named accused Paddo Yadav stood charged for the offence punishable under

Section 302/34 of the IPC whereas Paddo Yadav and appellant Arjun Yadav stood, separately, charged for the offence punishable under Section 148

of the IPC. Appellant Gopal Yadav stood, separately, charged for the offence punishable under Section 323 of the IPC whereas appellants Kartik

Yadav, Rudal Yadav, Suresh Yadav, Subhas Yadav and Gopal Yadav stood charged for the offence punishable under Section 147 of the IPC. The

appellants as well as Paddo Yadav denied the charges and claimed to be tried. However, the above stated accused Paddo Yadav died during

pendency of the trial and accordingly, proceeding against him was dropped.

In order to prove the charges, prosecution examined, altogether, eight witnesses and also got exhibited inquest report, postmortem report etc. as

documentary evidence.

The court also examined one Bajrangi Yadav as court witness.

The statements of appellants were recorded under Section 313 of the Cr.P.C. in which they reiterated their innocence.

No evidence was adduced by the appellants in support of their defence but from perusal of statements recorded under Section 313 of the Cr.P.C.

as well as trends of cross examination of the prosecution witnesses, it appears that defence of the appellants was total denial of the prosecution story.

The learned trial court after considering the evidences available on the lower court record passed the impugned judgment of conviction and

sentence order basically having relied upon testimonies of PW-1 and PW-3 who claimed themselves as eye witnesses of the occurrence before the

trial court.

Learned counsel appearing for the appellants submits that appellant no. 2 Arjun Yadav and appellant no. 3 Gopal Yadav died during pendency of

these appeals and their appeal against the impugned judgment of conviction and sentence order has already been abated. He further pointed out that

appellant no. 1 Rudal Yadav in Cr. Appeal (DB) No. 303 of 1994, appellant no. 2 Kartik Yadav as well as appellant no. 3 Subhas Yadav in Cr.

Appeal (DB) No. 353 of 1994 were juvenile at the time of alleged occurrence but learned trial court failed to take note of aforesaid fact. He submits

that statements of appellant no. 2, namely, Kartik Yadav, appellant no. 3, namely, Subhas Yadav in Cr. Appeal (DB) No. 353 of 1994 as well as

appellant Rudal Yadav in Cr. Appeal (DB) No. 303 of 1994 go to show that their statements under Section 313 of the Cr.P.C. were recorded in the

year 1993 and at the time of recording the statement of aforesaid appellants, the learned trial court assessed the age of appellant Subhas Yadav as 35

years, appellant Kartik Yadav as 33 years and appellant Rudal Yadav as 30 years and furthermore, it is admitted case of the prosecution that alleged

occurrence took place on 14.09.1976 whereas impugned judgment was pronounced on 30.05.1994. He submitted that according to assessment of

learned trial court itself, appellant Rudal Yadav was aged about 30 years in the year 1993 when his statement under Section 313 of the Cr.P.C. was

recorded and, therefore, it is obvious that in the year 1976, he was only 13 years old. Appellant Kartik Yadav was aged about 33 years in the year

1993 and therefore, he was 16 years old in the year 1976 when the occurrence took place. Similarly, appellant Subhas Yadav was 34 years old in the

year 1993 and, therefore, it is obvious that he was 17 years and few months old i.e. below 18 years at the time of alleged occurrence and the

aforesaid fact goes to show that appellant Rudal Yadav, appellant Kartik Yadav and appellant Subhas Yadav were juvenile at the time of alleged

occurrence.

It is not in dispute that at the time of alleged occurrence, Children Act, 1960 was in force and subsequently, Bihar Children Act, 1982 came into

force and, thereafter, The Juvenile Justice (Care and Protection of Children) Act, 2000 (hereinafter referred to as “Act 2000â€) came into force

which was made enforceable with effect from 22.08.2006. Section 2(k) of Act 2000 says that “juvenile†or “child†means a person who has

not completed eighteenth year of age. Section 2(l) of Act 2000 says that “juvenile in conflict with law†means a juvenile who is alleged to have

committed an offence and has not completed eighteenth year of age as on the date of commission of such offence. Therefore, it is obvious that Act

2000 treats a person of below 18 years as juvenile. Furthermore, Section 20 of Act 2000 makes the Act 2000 applicable in respect of pending cases.

For better appreciation, we think it proper to reproduce Section 20 of Act 2000 which runs as follows:-

Special provision in respect of pending cases-Notwithstanding anything contained in this Act, all proceedings in respect of a juvenile pending in any

court in any area on the date on which this Act comes into force in that area, shall be continued in that Court as if this Act had not been passed and if

the Court finds that the juvenile has committed an offence, it shall record such finding and instead of passing any sentence in respect of the juvenile,

forward the juvenile to the Board which shall pass orders in respect of that juvenile in accordance with the provisions of this Act as if it had been

satisfied on inquiry under this Act that a juvenile has committed the offence.

Juvenile Justice (Care and Protection of Children) Act, 2015 (hereinafter referred to as “Act 2015) was brought into force with effect from

15.01.2016 and Section 25 of above stated Act says that “notwithstanding anything contained in above stated Act, all proceedings in respect of a

child alleged or found to be in conflict with law pending before any Board or Court on the date of commencement of this Act, shall be continued in

that Board or Court, as if the above stated Act had not been enacted.†Therefore, the aforesaid Section 25 of Act, 2015 makes it clear that even

after commencement of Act 2015, the aforesaid Act will not make any effect on the pending cases.

On perusal of above stated facts as well as provisions, we find that appellant Rudal Yadav in Cr. Appeal (DB) No. 303 of 1994, appellant Kartik

Yadav and appellant Subhas Yadav in Cr. Appeal (DB) No. 353 of 1994 were juvenile at the time of alleged occurrence because all the above stated

three appellants were below 18 years of age when occurrence took place.

Section 20 of Act 2000 makes provision that if court finds that the juvenile has committed an offence, the court shall record the above stated

finding and instead of passing any sentence in respect of juvenile, the court shall forward the juvenile to the Board which shall pass order in respect of

that juvenile in accordance with the provisions of the Act.

As I have earlier stated that PW-1 Runa Devi and PW-3 Chinta Devi claimed themselves to be the eye witness of the alleged occurrence. So far

as remaining witnesses are concerned, PW-2 Anup Lal Yadav is a hearsay witness and he claims that he got information of alleged occurrence from

PW-5 and having got the aforesaid information, he went to Sujour Hospital where PW-3, PW-1 and one Pato Devi were present and PW-3 narrated

the entire incident to him.

PW-4 Laxmi Yadav is a witness of seizure of bloodstained earth. PW.-5 Kishun Yadav is son of PW-3 Chinta Devi and this witness also claims

that he came to know about the alleged occurrence from his mother PW-3. PW-6 Dr. Nand Kishore Sahu claims to have done the postmortem

examination on the dead bodies of the deceased persons. PW-7 Jaideo Mishra is a formal witness who proved the carbon copy of requisition written

by PW-8, the then Officer in Charge of Sahkund police station. He also proved carbon copy of injury report issued by medical officer of State

Dispensary, Sajour. PW-8 is investigating officer who claimed to have investigated the case. Apart from the aforesaid witnesses, one Bajrangi Yadav

was also examined as court witness no. 1.

The death of deceased persons of this case is not in dispute and the death of deceased persons of this case is proved by PW-6 Dr. Nand Kishore

Sahu who did postmortem examination on the dead bodies of the deceased persons. This witness claims that on 15.09.1976 he did postmortem

examination on the dead body of the deceased Govind Yadav and found following antemortem injuries on his person:-

Bruise over right forearm 1â€​ below elbow joint on radial border with subcutaneous haemotomma but without muscle and bone injury.

one cut injury over scalp slightly left to the vortex 1¼†long irregular margin slightly curved anteriorily towards right cutting whole thickness of

structure above scalp bone. Large collection of blood clot over scalp bone and on the brain substance around vertex.

One linear fracture of left parietal bone near vortex sagital plain.

Intra cranial haemotoma over both hemisphere of brain.

This witness further claimed that above stated injury no. 2, 3 and 4 were grievous in nature caused by hard and blunt substance which might be lathi

whereas injury no. 1 was simple which might by caused by fall on some hard substance. This witness opined that except the above stated injury no. 1,

the other injuries were sufficient in the ordinary course of nature to cause death of the victim. He opined that death of deceased Govind Yadav was

due to shock and haemorrhage resulting from brain injury. This witness proved the postmortem report of deceased Govind Yadav as Ext. 2.

He further claimed that on the same day, he did autopsy on the dead body of the deceased Chintamani Yadav and found following antemortem injuries

on his person:-

Two

cut injuries over left parietal area of the scalp measuring 1â€​ x 3â€​ with lacerated margins. The underline subcutaneous tissues had haemotoma.

One

linear fracture of left parietal bone from vortex to anterior inferior angle of bone with huge underline subdural haemotoma and laceration of the brain

substance on the left side.

He opined that above stated injuries were grievous in nature and caused by hard and blunt substance which might be lathi. He also opined that both

the above stated injuries were sufficient to cause death of Chintamani Yadav. He opined that deceased Chintamani Yadav died due to shock and

haemorrhage resulting from above stated injuries. He proved postmortem report of deceased Chintamani Yadav as Ext. 2/1. This witness has been

cross examined by the defence at full length. He admitted that injuries no. 2 and 3 of deceased Govind Yadav were practically at the same side. This

witness further admitted that injury no. 2 and 3 of deceased Govind Yadav may be caused by a single blow and furthermore, he admitted that injury

no. 1 of deceased Govind Yadav may be caused due to fall. This witness further admitted that injury no. 2 of deceased Chintamani Yadav was

noticed by him after dissection and he further admitted that he did not mention the distance between one cut injury to another cut injury in postmortem

report of Chintamani Yadav. He further admitted that on account of combined effect of two cut injuries, he opined that they were grievous in nature.

He further admitted that if there would have been only one cut injury measuring 1â€x 3†on the person of deceased Chintamani Yadav, this by itself

would not have been described as grievous.

From bare perusal of testimony of PW-6, it is established that both the deceased persons of this case died of their injuries which were found on

their person at the time of postmortem examination. Furthermore, it is obvious that although four injuries on the person of the deceased Govind Yadav

were found by PW-6 but he admitted in his cross examination that injury no. 2 and 3 of deceased Govind Yadav might have been caused by a single

blow. Moreover, the prosecution has succeeded to prove this fact that both the deceased persons of this case died of the injuries sustained by them.

PW-1 Runa Devi is sister of deceased persons of this case. This witness states that she had three brothers, namely, Govind Yadav (deceased),

Banarsi Yadav and Chintaman Yadav (deceased). She further states that her brothers had parted their ways one month prior to the alleged

occurrence. She further claims that three days prior to the alleged occurrence, she had come to her parental home. She claimed that on the alleged

date of occurrence at about 8 A.M., she along with Pato Devi (not examined) and Chinta Devi (PW-3) as well as Bajrangi Yadav (court witness no.

1) were sitting in the courtyard of her parental house. She further claimed that deceased Chintaman Yadav and deceased Govind Yadav were also

present there and in the meantime, appellant Rudal Yadav started removing Chappar of the hut situated towards north side of her parental home upon

which deceased Chintaman Yadav forbade him to do so but appellant Rudal Yadav started abusing and went in the village. She further claims that

after sometime appellants Rudal Yadav, Kartik Yadav, Subhash Yadav, Suresh Yadav, Arjun Yadav, Gopal Yadav and one Pado Yadav came in the

courtyard of her parental home and at that time appellants Kartik Yadav, Rudal Yadav, Subhash Yadav, Suresh Yadav and said Pado Yadav were

armed with lathies, appellant Gopal Yadav was armed with khanta and appellant Arjun Yadav was armed with bhala. She claims that appellant Kartik

Yadav gave lathi blow on the forehead of deceased Chintaman Yadav and thereafter, appellant Rudal Yadav assaulted chintaman Yadav by lathi and

thereafter other appellant and Pado Yadav also assaulted him. She further claims that Chintaman Yadav having sustained injuries fell down in the

courtyard. She further claims that when the deceased Govind Yadav tried to stop them, the aforesaid persons chased him who fled towards south side

but appellant Suresh Yadav gave lathi blow to deceased Govind Yadav as a result whereof, deceased Govind Yadav fell down on the ground and

thereafter, appellant Subhash Yadav gave lathi blow on the head of the deceased Govind Yadav and thereafter, all the above stated persons started

assaulting him by their respective weapons. She claims that one Matru Yadav also witnessed the aforesaid occurrence. She further claims that she

also tried to save her brothers but appellant Gopal Yadav gave one lathi blow on her right hand. She further claims that both the deceased persons

were brought to Sujour State Dispensary on a bullock-cart. She also claims that when deceased Chintamani and Govind were brought to hospital, the

doctor declared Chintamani brought dead and at that time, deceased Govind was in unconscious state and thereafter, on the advice of the doctor,

deceased Govind Yadav was taken to Bhagalpur on the bullock-cart but he died on his way. She admitted that she got information of death of

deceased Govind Yadav on the next day of the alleged occurrence. She further claims that on the same day at about 8 P.M. police came at Sujour

State Dispensary. She further states that appellant Rudal Yadav used to look after the field of Banarsi Yadav. On being cross examined by the

defence, she admitted that deceased Govind Yadav had lodged a criminal case against the deceased Chintaman Yadav for committing the murder of

Gujar Yadav. She further admitted that there was land dispute between her brothers and appellant Arjun Yadav. She further admitted that at the time

of alleged occurrence, she had noticed injury on the ear of appellant Kartik Yadav. She further admitted that Gohal (hut) of the deceased Chintaman

Yadav was on the land of Banarsi Yadav and on the alleged date of occurrence, the appellants Kartik and Rudal were removing chappar of aforesaid

hut upon which a hot exchange of words followed by assault took place. She denied this fact that deceased Chintamani Yadav had given farsa blow to

Kartik Yadav and Kartik Yadav sustained injury on his ear. She also denied that deceased Govind had assaulted the appellant Kartik by means of

lathi. She further admits that when police recorded the statement of PW-3, she along with Pato Devi and PW-1 was present there. She further claims

that police recorded her statement as well as statements of Pato Devi and PW-1. This witness further claims that appellants assaulted deceased

Chintaman Yadav in courtyard whereas deceased Govind was assaulted outside the house. She further claims that she had sustained only one injury

and she got examined by the doctor.

PW-3 Chinta Devi is wife of deceased Chintaman Yadav. She supported the prosecution case and claimed that while she was in her house along

with Pato Devi, Munga Devi, Runa Devi (PW-1), her husband Chintaman Yadav(deceased) and her BHAISUR Govind Yadav(deceased), appellant

Rudal Yadav came and started removing hut situated towards north side of her house. she further claimed that her husband forbade him to do so upon

which he left the place abusing her husband and again within half an hour he along with other appellants and one Paddu @ Paddo Yadav being armed

with lathi and other weapons came there and appellant Kartik gave one lathi blow on the head of her husband as a result of which he fell down on the

earth and thereafter, Rudal and others assaulted him by lathi whereas appellant Arjun and Gopal assaulted him by bhala and khanta. she further

claimed that her BHAISUR Govind went to save her husband but he was chased by the aforesaid persons and appellant Suresh gave one lathi blow

on the back of deceased Govind Yadav and thereafter appellant Subhash gave lathi blow on the head of Govind Yadav whereas remaining persons

assaulted him by their respective weapons. She further claimed that PW-1 went to save her brothers but appellant Gopal assaulted him by lathi. She

further claimed that appellant Kartik Yadav had also sustained injury in the alleged occurrence but the injury to Kartik Yadav was caused by one of

the remaining appellants. She further claimed that one Matru Yadav had also witnessed the occurrence. she further claimed that after the occurrence

she sent her son Kishun Yadav (PW-5) to give information to her brother Anup Lal Yadav (PW-2) and thereafter, the injureds were brought to Sajour

State Dispensary where her husband was declared brought dead and deceased Govind Yadav was taken to hospital by the court witness no. 1 and

others on a bullock-cart. She admitted in her cross examination that appellants Kartik and Rudal used to look after agricultural work of her

BHAISUR, Banarsi Yadav. This witness further admitted that her husband as well as her brother Mahesh Yadav were examined in the murder case

of Gujal Yadav and the aforesaid case had been lodged by her BHAISUR Govind Yadav. She further admitted that partition between her husband as

well as brothers of her husband had taken place one month prior to the alleged occurrence and the land towards north side of her house was allotted in

the share of Banarsi Yadav and in the aforesaid land, her hut was situated much prior to partition of brothers of her husband. She further admitted that

appellant Rudal Yadav started removing the aforesaid hut upon which her husband requested him not to demolish the hut as he would remove the hut

within a month but appellant Rudal Yadav left the place abusing her husband and thereafter, the appellants came there and committed the occurrence.

She further admitted that she had seen blood on the ear of appellant Kartik Yadav but claimed that appellant Kartik had sustained injury by lathi of one

of the appellants. She further claimed that her husband as well as her BHAISUR were unarmed at the time of alleged occurrence. She admitted that

appellant Kartik Yadav lodged the case for the occurrence of the same day against her husband, her bhaisur and others. She further admitted that her

statement was recorded at 8 P.M. at Sajour State Dispensary in presence of Pato Devi and others.

C.W. Bajrangi Yadav was examined as court witness and according to PW-1 and PW-3, this witness was also present over the place of

occurrence when the occurrence took place. The statement of this witness is very important. Admittedly, this witness is maternal nephew of both the

deceased persons. The learned trial court recorded the statement of this witness in question-answer form. This witness admitted in his deposition that

on 15.09.1976 at about 9:00 A.M., he got recorded his ferdbeyan at Sadar Hospital Police Camp, Bhagalpur and had put his signature on the aforesaid

ferdbeyan. However, this witness claimed that his ferdbeyan was not read over to him and he was only asked to put his signature and thereafter, he

put his signature on the aforesaid ferdbeyan. This witness also admitted that deceased Govind Yadav and Chintaman Yadav were brought to Sajour

Hospital by him and others and subsequently, the deceased Govind Yadav was being taken to Bhagalpur Sadar Hospital but he died on his way. This

witness was cross-examined by the prosecution as well as defence. This witness admitted in his cross examination that he had given his ferdbeyan at

Bhagalpur Medical College by his own violation. He further admitted that he saw appellant Kartik Yadav at Bhagalpur Medical College and Hospital

in injured condition and he further admitted that Kartik Yadav was brought to Bhagalpur Medical College and Hospital by the police. This witness

denied the suggestion of defence that he had not stated in his ferdbeyan about the presence of Chinta Devi (PW-3) over the place of occurrence

when occurrence took place.

From perusal of statements of above stated witnesses, it is obvious that as per claim of PW-1 and PW-3, the appellants assaulted the deceased by

means of lathi and other weapons and furthermore, PW-1 and PW-3 claimed that deceased Chintaman was assaulted by the appellants in courtyard

of his house whereas deceased Govind Yadav was assaulted by the appellants outside the house. furthermore, PW-1 and PW-3 admitted that alleged

occurrence took place on account of removal of chappar of a hut which stood on the land allotted to share of Banarsi Yadav who happens to be full

brother of deceased persons. Furthermore, PW-1 and PW-3 admitted that appellant Kartik Yadav and Rudal Yadav used to look after the land of said

Banarsi Yadav.

PW-8 was Officer in Charge of Sahkund police station on 14.09.1976 and he claimed that he received O.D. slip from Sajour Hospital and having

received the aforesaid O.D. slip, he entered Sanha no. 193 and after sometime he received report of Medical Officer of Sajour Hospital about the

death of one Chintaman Yadav and he again made entry no. 194. He further claimed that he went to Sajour Hospital and recorded the ferdbeyan of

PW-3. This witness proved the ferdbeyan of PW-3 as Ext. 5. He further claimed that he returned to police station where formal FIR was drawn up

and thereafter, he took charge of investigation. He claimed that in the morning of 15.09.1976 he inspected the place of occurrence. He seized

bloodstained earth from the courtyard of deceased persons. He also found a hut situated towards north-west corner of house of the deceased persons

and the said hut was found damaged. On being cross examined by the defence, this witness admitted in his cross examination that he had found injury

on the person of appellant Kartik Yadav. He further admitted that he arrested the appellant Kartik Yadav when he was admitted in the hospital. He

further admitted that PW-1 had not claimed before him that at the time of alleged occurrence, Gopal Yadav was armed with khanti and Arjun Yadav

was armed with bhala.

Perusal of deposition of this witness goes to show that this witness found blood in the courtyard of deceased persons and he described the

topography of place of occurrence but the defence did not cross examine this witness on the point of place of occurrence and, therefore, it is obvious

that prosecution succeeded to prove the place of occurrence. Moreover, trends of cross examination of prosecution witnesses reflect that appellants

have not denied the occurrence rather they claimed that it was prosecution party who assaulted the appellant Kartik Yadav and, therefore, in the

aforesaid circumstance, it can easily be said that place of occurrence has been established in this case by the prosecution.

It has been argued on behalf of the appellants that appellants Rudal Yadav, Kartik Yadav and appellant Subhash Yadav were juvenile at the time

of alleged occurrence. Admittedly, the alleged occurrence took place on 14.09.1976 and statement of appellant Kartik Yadav was recorded under

Section 313 of the Cr.P.C. on 21.06.1993. At the time of recording statement of appellant Kartik Yadav, the learned Additional Sessions Judge

assessed his age as 33 years though the aforesaid appellant Kartik Yadav disclosed his age as 30 years. However, even if it assumed that appellant

Kartik Yadav was aged about 33 years in the year 1993, then also, it is obvious that he was only 16 years of age at the time of alleged occurrence.

Similarly, the statement of appellant Rudal Yadav under Section 313 of the Cr.P.C. was recorded on 21.06.1993 and the learned Additional Sessions

Judge assessed his age as 30 years though the appellant Rudal Yadav disclosed his age as 25 years. Therefore, even if the assessment of learned

court below is accepted as correct, then also, at the time of alleged occurrence, the appellant Rudal yadav was aged about only 13 years. Similarly, the

learned court below while recording the statement of appellant Subhash Yadav under Section 313 of the Cr.P.C. assessed his age as 35 years and

admittedly, his statement was recorded on 21.06.1993 and, therefore, even if it assumed that at the time of recording his statement under Section 313

of the Cr.P.C. he was aged about 35 years, then also, at the time of alleged occurrence, appellant Subhash Yadav was below 18 years and it is

obvious that all the above stated three appellants were juvenile at the time of alleged occurrence. It is a well known fact that at the time of alleged

occurrence, there was no legislation to protect the interest of the children in State of Bihar and for the first time, Bihar Children Act, 1982 came in

existence to safeguard the interest of children. No doubt, prior to coming into force of Bihar Children Act, 1982, Children Act, 1960 was in existence

but the Children Act, 1960 was enforced only to certain indian territories. Section 2(d) of Bihar Children Act, 1982 says that “child†means a boy

or a girl who has not attained the age of 16 years or 18 years, respectively as the case may be. Perusal of aforesaid provision shows that a boy of 16

years of age was treated as child by the Bihar Children Act, 1982. Furthermore, Bihar Children Act, 1982 provides a special procedure to make an

enquiry, if a delinquent child commits any offence and furthermore, Section 22 of the aforesaid Act prohibits to sentence to death or imprisonment to

any delinquent child. However, subsequently, Juvenile Justice (Care and Protection of Children) Act, 2000 came into force with effect from

22.08.2006 and Section 2(L) of aforesaid Act says that “juvenile in conflict with law†means a juvenile who is alleged to have committed an

offence and has not completed 18 year of age as on the date of commission of such offence. However, the Juvenile Justice (Care and Protection of

Children) Act, 2015 came into force with effect from 15.01.2016 and Section 2(13) of the aforesaid Act says that “child in conflict with lawâ€

means a child who is alleged or found to have committed an offence and who has not completed 18 years of age on the date of commission of such

offence. Section 25 of the aforesaid Act makes it clear that if a proceeding in respect of a child alleged or found to be in conflict with law is pending

before any Board or Court on the date of commencement of this Act, shall be continued in that Board or Court as if the above stated Act had not

been enacted. Therefore, the above stated Section 25 of the Act, 2015 makes it clear that if any proceeding in respect of a delinquent child is pending

before any Board or Court at the time of commencement of Act, 2015 before any Board or Court, the said proceeding shall be continued and it would

be deemed that Act 2015 has not been enacted. Furthermore, the State Government framed Bihar Juvenile Justice (Care and Protection of Children)

Rules, 2017 and Rule 90 of the aforesaid Rules 2017 says as follows:-

Pending Cases-(1) No child shall be denied the benefits of the Act and the rules made thereunder.

(2) The benefits referred to in sub-rule(1) shall be made available to all persons who were children at the time of the commission of the offence, even

if they ceased to be children during the pendency of the inquiry or trial.

(3) While computing the period of detention or stay or sentence of a child in conflict with law, all such period which the child had already spent in

custody, detention, stay or sentence of imprisonment shall be counted as a part of the period of stay or detention or sentence of imprisonment

contained in the final order of the court or the Board.

Furthermore, Section 21 of Act, 2015 says that “no child in conflict with law shall be sentenced to death or for life imprisonment without the

possibility of release, for any such offence, either under the provisions of the aforesaid Act or under the provisions of the Indian Penal Code or any

other law for the time being in force. Moreover, the relevant provisions go to show that a delinquent juvenile can be detained only in special home for

three years.

As I have already discussed that the appellant Kartik Yadav was aged about 16 years, appellant Rudal Yadav was aged about 13 years and

appellant Subhash Yadav was below 18 years of age and they were juvenile at the time of alleged occurrence and, therefore, they could not have

been sentenced to undergo life imprisonment.

It is admitted position that appellant Arjun Yadav and Gopal Yadav died during pendency of their appeal and their appeal stood abated. So far as

appellant Suresh Yadav is concerned, PW-1 and PW-3 claimed that he gave single lathi blow on the back of the deceased Govind Yadav but PW-6

did not find any injury on the back of the deceased Govind Yadav and, therefore, the claim of PW-1 and PW-3 in respect of appellant Suresh Yadav

appears to be doubtful.

The appellants were convicted by the trial court under Section 302/34 of the I.P.C. and appellant Arjun Yadav (since deceased) was convicted for

the offence punishable under Section 148 of the I.P.C. whereas remaining appellants were convicted under Section 147 of the I.P.C. However, the

appellants were acquitted of the charge framed under Section 323 of the I.P.C. The learned court below has given finding that all the appellants

shared common intention for committing the murder of deceased persons of this case by assaulting them by lathi and other weapons. However, PW-1,

PW-3 and PW-6 admitted that they had seen injury on the person of appellant Kartik Yadav on the alleged date of occurrence and furthermore, PW-6

admitted that treatment of appellant Kartik Yadav was done in the hospital and the appellant Kartik Yadav was arrested from the hospital while he

was getting treatment. Furthermore, PW-1 and PW-3 claimed that all the appellants having formed an unlawful assembly came over the place of

occurrence and assaulted the deceased persons. However, PW-3 admitted in her cross examination that while appellant Rudal Yadav was removing

the hut, deceased Chintamani Yadav forbade him and thereafter, the occurrence took place. Furthermore, PW-3 admitted in her cross examination

that the land, on which the above stated hut stood, had fallen in the share of Banarsi Yadav and the appellants as well as his other family members

were care taker of land of Banarsi yadav. The above stated admission of PW-3 goes to show that a quarrel took place between deceased persons

and appellant Rudal Yadav on the point of removing the hut and in that course occurrence took place. Although, PW-1 and PW-3 claimed that after

quarrel, appellant Rudal Yadav went to his home and again after half an hour he along with other appellants being armed with deadly weapons came

there and thereafter, the alleged occurrence took place but the above stated admission of PW-3 tells a different story and makes it clear that alleged

occurrence took place immediately when the quarrel between deceased persons and one Rudal Yadav took place and, therefore, even if it assumed

that appellant Suresh Yadav was also present over the place of occurrence, then also, mere his presence over the place of occurrence does not show

that he had common intention with other appellants to commit the murder of the deceased persons. Therefore, in my view, appellant Suresh Yadav

could not have been convicted for the offences punishable under Sections 302/34 and 147 of the I.P.C. Therefore, conviction and sentence of

appellant Suresh Yadav is, hereby, set aside and he is acquitted of the charges framed against him for the offences punishable under Sections 302/34

and 147 of the I.P.C. He is set at liberty and is discharged from the liability of bail bonds.

So far as appellant Kartik Yadav is concerned, PW-1 and PW-3 specifically stated that appellant Kartik Yadav gave lathi blow on the head of the

deceased Chintaman Yadav and thereafter, appellant Rudal Yadav assaulted the deceased by means of lathi. Similarly, PW-1 and PW-3 claimed that

appellant Subhash Yadav gave lathi blow on the head of deceased Govind Yadav. PW-6 found two head injuries on the person of deceased

Chintaman Yadav and similarly, head injury was found on the person of deceased Govind Yadav. Therefore, the above stated claim of PW-1 and

PW-3 in respect of appellants Kartik Yadav, Rudal Yadav and Subhash Yadav is corroborated by the medical evidence. Therefore, in my view, the

learned court below rightly convicted the appellants Rudal Yadav, Kartik Yadav and Subhash Yadav for the offences punishable under Sections

302/34 and 147 of the I.P.C. but so far as their sentence is concerned, I have already discussed that being minor, the aforesaid appellants could not

have been sentenced for life imprisonment and, therefore, even if their conviction is sustained, then also, their sentence order is liable to be set aside.

The record goes to show that appellant Subhash Yadav remained in custody in course of trial for near about six years, appellant Kartik Yadav

remained in jail in course of trial for near about two and half years and similarly, Rudal Yadav also remained in jail for long period.

On the basis of aforesaid discussions and taking note of the aforesaid facts, the conviction of appellants Subhash Yadav, Kartik Yadav and Rudal

Yadav is, hereby, confirmed but since at the time of occurrence, appellants Subhash Yadav, Kartik Yadav and Rudal Yadav were juvenile, therefore,

their sentences are modified to the period already undergone. They are discharged from the liability of their bail bonds.

Accordingly, Cr. Appeal (DB) No. 303 of 1994 stands abated in respect of appellant no. 2 Arjun Yadav and appellant no. 3 Gopal Yadav whereas

the above stated appeal stands dismissed with modification in sentence order in respect of appellant no. 1 Rudal Yadav. Similarly, Cr. Appeal (DB)

No. 353 of 1994 stands partly allowed in respect of appellant no. 1 Suresh Yadav whereas stands dismissed with modification in sentence order in

respect of appellant no. 2 Kartik Yadav and appellant no. 3 Subhash Yadav. In the aforesaid manner, both the above stated criminal appeals stand

disposed off.