Upendra Singh Alias Dhuriya v. State Of Bihar — 1998 DIGILAW 858 (PAT)

Judgment I.P.Singh, J. 1. This appeal is directed against the judgment and order dated 13.12.1988 passed by Shri R.D. Roy, 7th Addl. Sessions Judge, Patna in S.T No. 760/86 by which all the four appellants were convicted under Sections 307/34 of the Indian Penal Code and were sentenced to undergo rigorous imprisonment for 10 years each. Appellant Updendra Singh was further convicted under Section 27 of the Arms Act and sentenced to undergo rigourous imprisonment for 7 year. Appellant, Ajay alias Gayadin, was further convicted under Section 323 of the Indian Penal Code and was sentenced to undergo rigorous imprisonment for one year. The sentences passed against appellants, Upendra Singh and Ajay alias Gayadin, were ordered to run concurrently. 2. The prosecution case, in short, is that at about 5 a.m. on 14.5.1982 the informant, Ram Narayan Din (P.W. 1), who happened to be a teacher in Kalyanpur Middle School was going to the school. When he reached near Balahia Coal Bagicha, appellants came to him and started abusing him. Appellant, Ajay, wielded his lathi on the head of P.W. 1 Appellant, Upendera Singh, fired at him from his pistol causing injuries on the chest of P.W. 1 and also on his right hand. On Hullah, Uma Chandra Din (P.W. 2), the son of P.W. 1 came there. Several persons including the Chaukidar, Chandrika Paswan (P.W. 3) also assembled. The S.I. of Police, Ram Chandra Sharma (P.W. 6) recorded the fardbeyan (Ext. 1) of P.W. 1 on the basis of which formal F.I.R. (Ext. 2) was drawn up and Punpoon P.S. Case No. 61/82 under Section 341/ 307/323 of the Indian Penal Code was instituted against the appellants. After completing the investigations, the police submitted charge-sheet. 3. In this appeal on behalf of the appeallants, it has been contended that no occurrence as alleged by the prosecution did ever take place. P.W. 1 might have received the injuries in some other incident but due to darkness (it was early morning) he could not identify the assailants. However, due to previous enmity the appellants have been falsely implicated in this case. 4. The appellants have further contended that in the fardbeyan a motive was alleged for assault on P.W. 1 according to which perior to the alleged occurrence an altercation between the parties had taken place over grazing of cattle in the field of the appellants. However, due to previous enmity the appellants have been falsely implicated in this case. 4. The appellants have further contended that in the fardbeyan a motive was alleged for assault on P.W. 1 according to which perior to the alleged occurrence an altercation between the parties had taken place over grazing of cattle in the field of the appellants. However, during trial this motive as alleged by the prosecution appears to have been changed and it was contended that the alleged occurrence had taken place since P.W. 1 had protested against the abuses hurled towards his daughter a few days ago by the appellants. This change in the motive makes the prosecution case doubtful. 5. The appellants have further contended that P.Ws. examined in this case have not supported the case of the prosecution. They have pointed out that the medical evidence on record does not support the case of the prosecution. Appellant No. 1, Upendra Singh, was a minor boy of 15 years on the alleged date of occurrence i.e. on 14.5.1982 as his date of birth is 1.3.1969. He could not have been tried along with other appellants and the benefit of Juvenile Justice Act, 1986 (in short the "said Act") should have been extended to him. No independent witness has been examined in this case. On these grounds, amongst others, it has been contended that the judgment of conviction. of the learned Court below be set aside and the appellants be acquitted. 6. The only point for decision before me is whether this appeal is fit to be allowed or not. 7. I will firstly take up for consideration the evidence adduced on behalf of the prosecution to establish the charges against the appellants. In all 8 P.Ws. have been examined in this case. Out of them P.W. 6 is the Investigating Officer P.Ws. 7 and 8 are the doctors. P.W. 4 is a formal witness. P.W. 1 is the informant himself and P.W. 2 is his son. P.Ws 3 and 4 do not claim to be the eye-witnesses of the alleged occurrence and have not supported the case of the prosecution. I will firstly proceed to examine the evidence of P.Ws. with respect to the alleged occurrence. 8. P.W. 1 is the informant himself. In his evidence, he has supported the case of the prosecution. P.Ws 3 and 4 do not claim to be the eye-witnesses of the alleged occurrence and have not supported the case of the prosecution. I will firstly proceed to examine the evidence of P.Ws. with respect to the alleged occurrence. 8. P.W. 1 is the informant himself. In his evidence, he has supported the case of the prosecution. In his cross-examination, he has stated that blood has fallen on the ground and his clothes were fully soaked with blood. His blood-stained clothes were not produced in Court. He has also stated that in all 4-5 lathi blows was given to him and firing had taken place twice. So far as P.W. 2 is concerned, he has claimed to be an eye-witness of the alleged occurrence. However, he has admitted that he reached the alleged. place of occurrence on hullah and found his father lying down on the ground. From this it would appear that he is not an eye-witness to the alleged occurrence. P.Ws. 3 and 4 have not supported the case of the prosecution. They have been declared hostile. The attention was drawn to their alleged statements said to have been made before the police. The Investigating Officer (P.W. 6), however, has not stated that P.W. 3 and P.W. 4 had made those statements before him in course of investigation. Thus, the prosecution has failed to prove those contradictions. 9. I will now take up for consideration the evidence of P.Ws. 3 and 4 P.W. 3 is the Chaukidar. He is said to have reached the alleged place of occurrence and according to the prosecution case, he had witnessed the alleged occurrence. In his evidence he has not supported the case of the prosecution on this point. He has stated that on hearing the sound of gun fire he came to the alleged place of occurrence and found P.W. 1 lying on the ground with bleeding injuries. His attention has been drawn to his alleged statement made before the police. However, the contradiction in his evidence could not be taken by the prosecution from the Investigating Officer (P.W. 6). In his evidence P.W. 6 has admitted that P.W. 3 had only stated that he had seen the accused persons fleeing away from the alleged place of occurrence. No other contradiction in the evidence of P.W. 3 could be taken from P.W. 6. In his evidence P.W. 6 has admitted that P.W. 3 had only stated that he had seen the accused persons fleeing away from the alleged place of occurrence. No other contradiction in the evidence of P.W. 3 could be taken from P.W. 6. So far as P.W. 4 is concerned, he has not at all supported the case of the prosecution and was declared hostile. His attention was drawn to his alleged statements made before the police. Those contradictions, However, could not be taken from the Investigating Officer (P.W. 6). No other eye witness has examined in this case. The law on the point of the value of the evidence of a witness declared hostile has been settled by the Hon ble Supreme Court in the case of Sat Paul V/s. Delhi Administration, ( AIR 1976 SC 294 ). According to this decision if a witness is cross examined by the prosecution which ailed him, it will not mean that his entire evidence is washed off. The Judge can accept that part of his testimony which he find reliable. In the present case P.Ws. 3 and 4 have not at all supported the case of the prosecution and as such their evidence is not of any help to the prosecution case. The prosecution has failed to prove any contradiction in their evidence. The evidence of P.Ws. 3 and 4 on record completely goes against the prosecution. Thus, on the basis of the evidence on record it is clear that the prosecution has not been able to prove its case beyond all reasonable doubts and on this ground alone the appellantsare entitled to be acquitted. 10. So far as the motive as alleged by the prosecution is concerned there also there is a contradiction. It may be stated here that in a criminal case no motive is required to be alleged by the prosecution for any occurrence. However, it is equally well settled that if the prosecution alleges a particular motive for the alleged occurrence it should prove the same. In the Fardbeyan it has been alleged that there was a dispute between the parties from before over grazing of cattle. However, during the trial P.W. 1 has changed the motive by stating that the alleged occurrence had taken place since the appellants had abused his daughter a few days before the alleged occurrence. In the Fardbeyan it has been alleged that there was a dispute between the parties from before over grazing of cattle. However, during the trial P.W. 1 has changed the motive by stating that the alleged occurrence had taken place since the appellants had abused his daughter a few days before the alleged occurrence. Surprisingly enough no such motive has been stated in the fardbeyan. This change in the alleged motive by the prosecution also makes the prosecution case doubtful. Moreover, the daughter of P.W. 1 has not been examined. 11. So far as medical evidence is concerned it also does not support the case of the prosecution. P.W. 8 is Dr. Basudeo Swarup, who has granted the medical certificate in the case. According to him he found three injuries on the person of the informant. In his cross examination, however, he has stated that he does not remember whether he had sumbitted the report to the police or not. It was only on 22.10.1982 that he had received a requisition from the police for the examination of the injured (The alleged occurrence had taken place on 14.5.1982). Earlier he has referred the injured (P.W. 1) to Patna Medical College Hospital and at that time he did not prepare any injury report. So far as P.W. 7 is concerned, he was the Surgical Registrar of P.M.C.H. at the relevant time. He has simply stated that on 14.5.82 P.W. 1 had come for his medical examination. Thus, the medical evidence on record also does not appear to be satisfactory. In this connection a reference may be made to the evidence of the Investigating Officer (P.W. 6) who has stated that he received the injury report on 22.10.1982 from Punpoon Hospital from P.W. 7 who had prepared the same on the same date. As stated above P.W. 8 before referring the injured (P.W. 1) to Patna Medical College Hospital had not even entered his injuries in the injury register. It was only on 22.10.1982 that he got a requisition from the Police and submitting his report according to which he found three injuries on the person of P.W. 1. Thus, the medical evidence on record also does not support the case of the prosecution. 12. P.W. 1 has stated that after receiving gun shot injuries there was profuse bleeding by which his clothes were soaked with blood. Thus, the medical evidence on record also does not support the case of the prosecution. 12. P.W. 1 has stated that after receiving gun shot injuries there was profuse bleeding by which his clothes were soaked with blood. Even the blood had fallen on the ground. It is not clear what happened to the blood stained clothes. The Investigating Officer has not claimed that he has seized the same. Similarly there were empty cartridges which had fallen on the ground and which were collected by the police. The same were not sent for examination by the Forensic Expert. From these discussions it would appear that the prosecution has not been able to prove its case beyound all reasonable doubts and the appellants are entitled to acquittal on the basis of the evidence on record. 13. At the time of hearing, the learned counsel for the appellants has strongly contended before me that on the alleged date of occurrence appellant no.1, Upendra Singh, was a minor and, therefore, the learned Trial Court was in a great error in holding his trial along with other appellants and in convicting and sentencing him to rigorous imprisonment directly in conflict with the provisions of the said Act. This plea has been taken in paragraph 18 of the Memo of Appeal. On this ground it has been contended that the entire trial of the appellants stand vitiated. 14. From the record it appears that this appellant was examined under Section 313 of the Code of Criminal Procedure, 1973 (in short the Code) on 31st August, 1988 in which he had disclosed his age to be 19 years. It, however, appears that the court in its assessment has opined that his age was 25 years though there is some over writing in it. However, before Learned Additional Sessions Judge written statement-cum-notes or argument was filed on behalf of the appellants. In its paragraph 25 it has been stated that accused Upendra Singh was a minor aged only 13 years on 14.5.1982 and that his date of birth was 1.3.1969. From this, it would appear that this plea that on the alleged date of occurrence this appellant was minor was taken before the learned Trial Court before the judgment was pronounced. In its paragraph 25 it has been stated that accused Upendra Singh was a minor aged only 13 years on 14.5.1982 and that his date of birth was 1.3.1969. From this, it would appear that this plea that on the alleged date of occurrence this appellant was minor was taken before the learned Trial Court before the judgment was pronounced. From the judgment, however, it appears that the learned Trial Court has completely ignored this fact and has proceeded to pass the judgment of conviction and sentence against all the appellants including appellant, Upendra Singh. In the judgment no reason has been assigned for completely ignoring this fact. In course of bearing of this appeal before this Court the appellants submitted that this was not legal or even proper and in this connection the learned counsel Mr. Lala Kailash Bihari Prasad, appearing on behalf of the appellants had placed reliance on the case of Bhola Bhagat V/s. State of Bihar, (1997) (2) PLJR 161 (SC): 1998 (1) East Cr C 735 (SC). When this plea on behalf of the appellants was taken before this Court the learned Trial Court was directed to hold an enquiry and to record a finding about the age of this appellant Upendra Singh. It appears that as directed, the learned 7th Additional Sessions Judge, Patna, Shri S.P. Rai has submitted his report dated 31st July, 1988. In course of enquiry he also examined the report of Joint Secretary of Bihar School Examination Board according to which the appellant, Upendra Singh, was born on 1.3.1969. If this date of birth of Upendra Singh is accepted as correct obviously on the alleged date of occurance he was a minor being aged about 15 years. The original certificate issued by the Secretary School Examination Board is also on the record according to which the date of birth of this appellant is 1.3.1969. Since the alleged occurrence had taken place on 14.5.1982 obviously this appellant was below the age of 15 on this date and under law he should have been dealt with under the provisions of Bihar Children Act, 1982. This Act was repealed by Section 63 of the said Act with effect from 2.10.1987 (the date on which this Act came into force). From this, it would appear that on the alleged date of occurrence the Bihar Children Act, 1982 was inforce. This Act was repealed by Section 63 of the said Act with effect from 2.10.1987 (the date on which this Act came into force). From this, it would appear that on the alleged date of occurrence the Bihar Children Act, 1982 was inforce. However, the charges in this case were framed on 26.4.1988 and the evidence of the witnesses before the learned Trial Court started on 24.5.1988. Obviously, therefore, the said Act had come into force before the start of the trial of this case by the learned Additional Sessions Judge in which the judgment was pronounced on 13.12.1988. 15. In this connection, a reference may be made to the Full Bench Decision of this Court in the case of Krishna Bhagwan V/s. State of Bihar, AIR 1989 Pat 217 : 1989 East Cr C 646 (FB). In this case a Full Bench of this Court was faced with a similar situation. According to the facts of the said case the alleged occurrence had taken place on 8.3.1982. Before this Bihar Children Ordinance, 1973 was promulgated which was ultimately replaced by Bihar Children Act, 1982. On the alleged date of occurrence the law as contained in the aforesaid ordinance and the Act was in force. Later on Juvenile Justice Act, 1986 was enacted by which Bihar Children Act, 1982 was repealed. However, in this decision it was held that the relevant date for the application of the provisions of the aforesaid law would be the alleged date of occurrence. From this it would appear that if a person was a minor on the alleged date of occurence his case will have to be dealt with according to the provisions of this law and not according to the provisions of the Code. 16. In this connection, a reference may also be made to the case of Bandela Ailaiah V/s. State of A.P., 1995 Cr LJ 1083. This is a Bench decision of the Andhra Pradesh High Court in which also it has been held the relevant date for the application of the provisions of the said Act would be the alleged date of occurrence and the age of the appellant on that date. From this, it would appear that the law on this point is clear, according to which the relevant date for the application of this Act could be the date of alleged occurrence. From this, it would appear that the law on this point is clear, according to which the relevant date for the application of this Act could be the date of alleged occurrence. This decision has been mentioned with approval in the case of Bhola Bhagat (Supra). 17. On behalf of the State, it has been submitted that if the appellants intended that the provisions of this Act should have been made applicable in this case or at least in the case of appellant No. 1, Upendra Singh, they should have made a prayer to that effect before the Trial Court failing which the Trial Court was guided by his own assessment of the age of this appellant as recorded during his examination under Section 313 of the Code I, however, do not find any force in this contention. It is well settled that the burden of proving the age of deliquent is not on him and it is for the Court to hold an enquiry about the age to find out whether such a person would be a deliquent juvenile for the purpose of the Act. It has clearly been held in the case of Bhola Bhagat (Supra) that when a plea is raised on behalf of an accused that he was a child with in the meaning of the definition under the Bihar Children Act, 1982 it becomes obligatory for the Court to determine the age as claimed by the accused and to hold an enquiry itself for the determination of the question of age of the accused or cause to be held, if necessary, by asking the parties to lead evidence before Trial Court. From this it would appear that it was for the learned Trial Court to hold an enquiry or to cause an enquiry to be held on this question once the plea of minority has been taken before him. The learned Trial Court has completely failed to do so and has totally ignored the plea of this appellant as taken in paragraph No. 25 of the written statement that on the alleged date of occurrence he was still a minor. It may be mentioned here that this legislation is a beneficial legislation and, therefore, it should not have been ignored. It may be mentioned here that this legislation is a beneficial legislation and, therefore, it should not have been ignored. The Hon ble Supreme Court has gone to the extent of saying that even if this plea of minority is taken for the first time before the Supreme Court, it has to be taken into consideration as held in the case of Gopinath Ghosh V/s. State of West Bengal, AIR 1984 SC 287 : 1985 East Cr C 482 (SC). 18. From the detailed discussions made above, it becomes perdetly clear to me that in the present case, the learned Trial Court could not have passed any sentence against appellant Upendra Singh in view of Section 26 of the said Act which runs as follows : "26. Special provision in respect of pending casesNot withstanding any thing 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 Juvenile has committed an offence, it shall record such finding and instead of passing any sentence in respect of the Juvenile, forward the Juuvenile to the Juvenile Court which shall pass orders in respect of the Juvenile in accor-dence with the provisions of this Act as if it had been satisfied on inquiry under this Act that the Juvenile has committed the offence." 19. From this section, it becomes perfectly clear that even if the learned Trial Court found that the charge against this appellant were proved, he could not have sentenced him to any imprisonment. The law required that in a situation like this it was obligatory on his part to adopt the procedure as contained in Section 26. Similarly, Section 24 (1) of the said Act required that no Juvenile could be charged or tried for any offence together with a person who is not a juvenile. Section 24 (2) provides that in a case in which a juvenile has been charged and tried together with a person not a juvenile, the Court taking cognizance of the offence shall direct separate trials of the juvenile and the other persons. Section 24 (2) provides that in a case in which a juvenile has been charged and tried together with a person not a juvenile, the Court taking cognizance of the offence shall direct separate trials of the juvenile and the other persons. Since the trial in the present case had started after coming into force of this Act, the learned Trial Court should have taken the precaution of not holding the joint trial of juvenile. Upendra Singh, along with other accused of this case. I have already noticed in the earlier part of the judgment in the present case the charges were framed on 26.4.1988 after coming into force of this Act which had taken placed on 2.10.1987. 20. From the detailed discussions made above, it becomes clear that even on facts the judgment of conviction of the learned Trial Court cannot be sustained. The prosecution has failed to prove the charges against the appellant beyond all reasonable doubts. Moreover so far as the case of Upendra Singh is concerned, he could not have been sentenced of any term of imprisonment against the provisions of law. 21. In the result, the impugned judgment of conviction of the learned Court below is set aside and the appellants are acquitted of the charges framed against them. They are directed be set at liberty.