Satish vs State

Vinod Prasad and Surendra Kumar, JJ.—The sole appellant Satish, through instant appeal, has challenged his conviction u/s 302, I.P.C. and imposed sentence of life imprisonment therefor, recorded in S.T. No. 33 of 1982, State v. Satish and another, relating to P.S. Pisawa, district Aligarh, by learned Session''s Judge, Aligarh, vide judgment and order dated 30.9.1982. Noted here is the fact that another accused Kishan was acquitted by the learned trial court by the same decision. Perusal of the record of the appeal informs us that incident in question had occurred on 14.5.1980 at about 5.30 p.m. According to the informant Rajvir Singh''s allegations, which he had scribed in his F.I.R., Ext. Ka-1, he was an army personnel and had come to his house on leave. On 14.5.1980, in the evening at 5.30 p.m., his brothers Shri Pal and Suresh were returning to their house from a well, after supplying water to their live stocks and no sooner they reached in the vicinity of a ''Chaamad'' (small open piece of land devoted to Goddess), accused-appellant Satish arrived there armed with the licensed gun of his brother acquitted accused Kishan Kumar and accosted Shri Pal that he would teach him a lesson for surveillancing him and immediately shot at him, casing him gunshot injury. This incident was witnessed by Shri Suresh, Smt. Sukhbiri, Devi Ram, as well as other co-villagers. Injured Shri Pal, while being transported to the police station on a cot, lost the battle of his life in midway.

F.I.R., Ext. Ka-1, about the incident, came to be scribed by the informant Rajvir Singh, who then carried it to the police station Pisawa, where he lodged it the same day "at 8 p.m. The chik report, Ext. Ka-2 and G.D. entry, Ext. Ka-3 were prepared. S.O. R.C. Singh Bhukesh, P.W. 4, engineered the investigation, conducted inquest on the corpse of the deceased and prepared inquest report and other connected papers, Ext''s. Ka-4 to Ka-7 and then sealing the dead-body dispatched it to mortuary through constables Shiv Narayan Prasad P.W. 5 and Jhadon Singh for autopsy. Investigating Officer had collected blood stained ''chadar'' which was wrapped around deceased wound to stop oozing of blood by preparing it''s seizure memo Ext. Ka-8. Thereafter, Investigating Officer, P.W. 4, interrogated the witnesses and recorded their statements and conducting spot inspection had prepared site plan Ext. Ka-9. Investigating Officer also endeavoured to apprehend the culprits but they were at large. On completion of investigation, P.W. 4 had submitted charge-sheet Ext. Ka-11 against accused-appellant Satish and Ext. Ka-12 against acquitted accused Kishan Kumar.

The post-mortem on the corpse of the deceased was performed by Dr. S.C. Agarwal, P.W. 6, on 15.5.1980 at 3.45 p.m. According to the doctor, following ante-mortem physical injury was sustained by the deceased:

(I) Multiple gunshot wound of entry over the right side chest lower part and right abdomen, the maximum size 4 mm. x 4 mm. x variable dept. Minimum size was 3 mm. x 3 mm. x variable dept. scattered in an area of 10 c.m. x 5.5 c.m. The margins were inverted, blood clots were present over these wounds. These wounds were situated very close to each other. Few gunshot wounds coalesced each other and formed a big wound, from which three pieces of wedding material were removed and three shots were also removed from pectoral muscle area.

On internal examination, doctor, P.W. 6, had noted in the postmortem examination report, Ext. Ka-14 that there was "fracture of 7th and 8th ribs. The right pleura were lacerated at many places. The right pleural cavity contained fluid blood and five shots. The right lung was lacerated and two shots were removed. Liver was lacerated and six shots were removed. Similarly 11 shots were removed from the intestines. The stomach contained partially digested food material about 4 oz. and the stomach was lacerated. Eight shots were removed."

In the opinion of Dr. Agarwal, P.W. 6, death had occurred due to shock and hemorrhage on account of the gunshot injury, which was sufficient in the ordinary course of nature to cause death. He further opined that the death could have taken place at about 6 p.m. on 14.5.1980.

On the basis of above two referred charge-sheets, both the accused were summoned and finding their offence triable by Session''s Court, their cases were committed to Session''s Court, where it were registered as one S.T. No. 33 of 1982, State v. Satish and another.

Learned trial Judge charged the accused with their respective offences, which charges, after being read out and explained to the accused were abjured by them, who both claimed to be tried and hence to prove their committed offence session''s trial procedure was adopted.

To establish appellant''s guilt, prosecution examined six witnesses besides relying upon several above to referred documentary evidences. Tendered witnesses included informant Rajvir Singh P.W. 1, Suresh P.W. 2, Surendra P.W. 3, Investigating Officer (S.O.) R.C. Singh Bhukesh P.W. 4, Constable Shiv Narayan Prasad P.W. 5 and Dr. S.C. Agarwala P.W. 6.

Both the accused denied their involvement in the incident and appellant stated that he was not in the village but he had gone to his sister''s place on the date of the occurrence.

Learned trial court after going through prosecution evidences, both oral and documentary, and after critically analyzing facts and circumstances of the case held that prosecution had failed to establish it''s charge against accused Kishan Kumar and therefore, by the impugned judgment, acquitted him. However, it concluded that so far as the appellant Satish is concerned, it has been established by the prosecution, conclusively, beyond any reasonable doubt, that he had committed the murder and therefore, by same impugned judgment, convicted him u/s 302, I.P.C. and sentenced him to life imprisonment which conviction and sentence is under-challenge in the instant appeal.

The appeal was admitted in this Court on 4.10.1982 and the appellant was released on bail.

In the factual matrix narrated above that we have heard Sri G.S. Chaturvedi for the appellant and learned A.G.A. for respondent prosecutor State.

It was urged on behalf of appellant that the appellant was juvenile on the date of the incident and hence, while his conviction be maintained but his sentence be quashed.

Learned A.G.A., submitted that the matter be sent to the Juvenile Board, as in his statement u/s 313, Cr. P.C., appellant had disclosed his age as 20 years.

We have perused the record and from such a perusal it is evident that this appeal was heard previously on 3.5.2010, and one of the appellant''s contentions was that the appellant was a juvenile on the date of the incident and hence this Court had directed an inquiry to be conducted on that aspect to determine juvenility of the appellant and, for that end, had directed the appellant to present himself before the Session''s Judge, Aligarh, alongwith the relevant evidences and documents in support of his such a plea. It was further directed that, after conducting the inquiry, Session''s Judge shall submit his report to this court as to "whether on the date of incident the appellant was juvenile or not". In the later portion of that order paper book of the appeal was also directed to be sent to the Session''s Judge and it was left open for him to conduct the inquiry himself or get it done by another Additional Session''s Judge. In pursuance of that order by this Court, an inquiry was conducted by Additional Session''s Judge, Court No. 9, under the directions of the Session''s Judge, Aligarh. Inquiry Officer/Additional Session''s Judge, Court No. 9, after completing that inquiry concluded, vide his report dated 12.7.2010, that appellant, on the date of the Incident 14.5.1980, was more than 14 but less than 15 years of age and hence was a juvenile offender on the date of the incident. This report was forwarded by the Session''s Judge, to this Court, but this Court further directed the said report to be furnished to the informant Rajvir Singh to invite his objections regarding such a determination of appellant''s age as juvenile. In follow up action copy of report of Inquiry Officer/Additional Session''s Judge, Court No. 9, was furnished to the informant, who, through his affidavit, filed no objection in declaring appellant accused to be a juvenile on the date of the incident and hence a supplementary report dated 2.6.2012 was sent to this Court, wherein it was again affirmed that on the date of the incident appellant was juvenile being more than 14 but less than 15 years of age. Both these reports, submitted by the Inquiry Officer/Additional Session''s Judge, Court No. 9, Aligarh are on the record of this appeal in original and we direct that they will form the part of the record.

Since under the Juvenile Justice (Care and Protection of Children) Act, 2000, the benefit of age has to be accorded to a juvenile offender below 18 years of age, therefore, without entering into the discussion on merits of the appeal and without elaborating the evidences, we are of the view, that though the conviction of the appellant cannot be set aside, but his sentence has to be quashed, which view we adopt, because of various Apex Court decisions, some of which are referred to herein below:

In 1982 (3) SCC 385 (Durg District Metal and Engg. Worker Union v. Bhilai Construction Co.) , it has been observed by the Apex Court as under:

It is thus proved to the satisfaction of this Court that on the date of occurrence, the appellants had not completed 16 years of age and as such they should have been dealt with under the U.P. Children Act instead of being sentenced to imprisonment on conviction u/s 302/34 of the Act.

Since the appellants are now aged more than 30 years, there is no question of sending them to an approved school under the U.P. Children Act for detention. Accordingly, while sustaining the conviction of the appellants under all the charges framed against them, we quash the sentences awarded to them and direct their release forthwith. The appeals are partly allowed in the above terms.

In Jayendra and another Vs. State of Uttar Pradesh, , it has been held by the Apex Court as under;

Section 2 (4) of the Uttar Pradesh Children Act, 1951 (U.P. Act No. 1 of 1952) defines a child to mean a person under the age of 16 years. Taking into account the various circumstances on the record of the case we are of the opinion that the appellant Jayendra was a child within the meaning of this provision on the date of the offence. Section 27 of the aforesaid Act says that notwithstanding anything to the contrary in any law, no court shall sentence a child to imprisonment for life or to any term of imprisonment. Section 2 provides, in so far as it is material, that if a child is found to have committed an offence punishable with imprisonment, the court may order him to be sent to an approved school for such period of stay as will not exceed the attainment by the child of the age of 18 years. In the normal course, we would have directed that the appellant Jayendra should be sent to an approved school but in view of the fact that he is now nearly 23 years of age, we cannot do so.

For these reasons, though the conviction of the appellant Jayendra has to be upheld, we quash the sentence imposed upon him and direct that he shall be released forthwith.

The same view was taken in Dharambir Vs. State (NCT of Delhi) and Another, and Bhoop Ram Vs. State of U.P., .

There is no report of an unimpeachable character contrary to the report submitted by the Inquiry Officer/Additional Session''s Judge, Court No. 9, Aligarh refuting conclusions arrived at by the Inquiry Officer and consequently, we are option-less than to accept the said report as correct, which has not even been disputed by the informant. Thus from the report submitted by the Inquiry Officer/Additional Session''s Judge, Court No. 9, conclusively, it is established that appellant, on the date of the incident was a juvenile and hence is entitled to the protection of his juvenility.

Residue of our discussion is that the appeal is allowed in part. While conviction of the appellant u/s 302, I.P.C. recorded in the impugned judgment dated 30.9.1982, passed in S.T. No. 33 of 1982, State v. Satish and another, relating to P.S. Pisawa, district Aligarh, by Session''s Judge, Aligarh, is hereby maintained, but the sentence of life Imprisonment awarded to the appellant therefor is quashed. Appellant is on bail, he need not surrender, his ball bonds and surety bonds are hereby discharged.

Copy of the judgment be certified to the trial court for it''s intimation.