JUDGMENT Per: U.C. Dhyani, J On an FIR lodged by Karam Elahi, brother of victim with P.S. Haldwani on 26.12.1997 at 7:45 p.m., the criminal law was set into motion for killing of Matloob by appellants Afzal, Saleem and Mansur. The incident took place on 26.12.1997 at 7:00 p.m. and the FIR was lodged the same day at 7:45 p.m. The distance between the place of occurrence and police out post was 2 Kms only. Hence, there appears to be no delay in lodging the FIR. 2. The FIR was lodged by Karam Elahi to the effect that his brother Matloob used to deal in purchase and sale of buffalos. About 8-9 months before the incident, accused Saleem had purchased a buffalo form his brother. A sum of Rs. 2,000/- was due against Saleem. When Matloob Elahi demanded money from him, he did not pay the same. Saleem committed marpeet with Matloob Elahi. A police report to this effect was lodged in the P.S. concerned. A criminal case was pending against Saleem in the court. Since then Saleem and others were inimical to Matloob. On 26.12.1997 at 7:00 p.m. Matloob was sitting on chair in front of the house of Taufeeq. Narayan Das was providing fodder to the buffalos. The informant was collecting water for buffalos. Israel was talking to his brother in connection with purchase of a buffalo. He saw that the accused / appellants Afzal, Saleem and Mansur had come there. Accused Afzal and Saleem were having country-made pistols in their hands and Mansur was having a knife in his hands. They came from the south of lane no.14. The accused/ appellants surrounded Matloob. Saleem started abusing him and ridiculed him for involving in litigation. Saleem said that they (appellants) will pay him (Matloob) the balance today. Saleem and Afzal fired on Matloob with country-made pistols with the intention of killing him. Mansur made an assault on him with knife. Matloob got injured. He fell on the spot. Accused/ appellants fled away from the place of occurrence. Matloob was immediately taken to hospital but could not survive. There was a lamppost outside the residence of Taufeeq on the street. Narayan Das and Israel saw this incident. 3. After investigation, charge sheet was submitted by the Investigating Officer against the appellants. Matloob got injured. He fell on the spot. Accused/ appellants fled away from the place of occurrence. Matloob was immediately taken to hospital but could not survive. There was a lamppost outside the residence of Taufeeq on the street. Narayan Das and Israel saw this incident. 3. After investigation, charge sheet was submitted by the Investigating Officer against the appellants. Charge under Section 302 IPC was framed against Afzal, Saleem and Mansur, to which they pleaded not guilty and claimed trial. 4. As many as 5 prosecution witnesses were produced on behalf of the prosecution. A reference of testimony of these witnesses will be given in the following paragraphs. The statements of accused / appellants under Section 313 Cr.P.C. were taken. They have denied everything. They did not offer to give any evidence in defence. 5. Learned Trial Court convicted accused/appellants Afzal, Saleem and Mansur for the offence punishable under Section 302/34 IPC. All of them were awarded imprisonment for life. 6. Aggrieved against this order, all the three accused/appellants have preferred this criminal appeal. 7. P.W. 1 Azim Elahi said that he knew Afzal, Saleem and Mansur. On 26.12.1997, his brother Matloob Elahi was killed. He was sitting at his home. On hearing the sound of fire he reached the place of occurrence. Thereafter, he along with his brother Karam Elahi and 3-4 more persons took him to S.S. Jeena Base Hospital at Haldwani where Matloob Elahi passed away. The complaint was written by him on the dictation of Karam Elahi. He has proved his signatures on the complaint (Ext. Ka-1). His brother Matloob Elahi had some dispute with Saleem and Afzal over the purchase of buffaloes and payment of Rs. 2,000/-. A criminal case of marpeet was pending in the court of Judicial Magistrate, Haldwani. P.W. 1 Azim Elahi was also a signatory to inquest report (Ext.Ka-2). The inquest was conducted on 27.12.1997 at 7:00 a.m. 8. P.W.2 Mohd. Israel in his statement has said that he knew appellants Afzal, Saleem and Mansur. He also knew deceased Matloob Elahi. He has supported the prosecution story. He has said that on 26.12.1997 at 7:00 p.m. he had gone to Matloob Elahi to negotiate purchase of buffaloes Afzal, Saleem and Mansur came there. Afzal and Saleem had country-made pistols and Mansur had a knife in his hand. He also knew deceased Matloob Elahi. He has supported the prosecution story. He has said that on 26.12.1997 at 7:00 p.m. he had gone to Matloob Elahi to negotiate purchase of buffaloes Afzal, Saleem and Mansur came there. Afzal and Saleem had country-made pistols and Mansur had a knife in his hand. Saleem told Matloob that he (Matloob) should do work of court-kutchery and he (Saleem) will do his (Matloob’s) work. Then Saleem and Afzal fired on Matloob and appellant Mansur waived his knife to kill him. But by then Matloob fell down and started bleeding. Karam Elahi and Narayan Das cried. Accused / appellants fled towards lane no.17. Lot of people assembled there. Injured Matloob Elahi was taken to the hospital by a car. P.W.2 Mohd. Israel went to the hospital on scooter. On reaching there he came to know that Matloob Elahi had passed away. A lamp post was there near the place of occurrence. 9. In his cross-examination, P.W.2 Israel said that he was an employee at petrol pump, Lalkuan. He resided at Awas-Vikas colony at Lalkuan. He was not a butcher by profession. He was not a visitor to the residence of the assailants. He had not seen the assailants before this incident. Some 15-20 people had assembled there when the occurrence took place. The people (who had assembled there) told him the names of the assailants. He did not know the appellants personally. He also said that there was light (of electricity) on the spot. He reached hospital at 7:45 p.m. He stayed with Matloob for about 15-20 minutes. He had business relations with Matloob and Karam Elahi for the last 2-3 years (in connection with purchase of buffaloes). Matloob was sitting on the chair when the incident took place. He was facing west. His back was towards the house of Taufeeq. P.W.2 Israel was sitting at a distance of 2 paces from Matloob. The assailants struck fire. Victim fell on the ground. The firearm was used from his left. The assailants fired on the victim again. No material inconsistency has surfaced in the testimony of this eyewitness. 10. P.W.3 Dr. J.S. Pangti was posted on 27.12.1997 as Senior Surgeon in Soban Singh Jeena Base Hospital, Haldwani. The dead body of deceased Matloob Elahi aged 25 years was kept in mortuary under the supervision of constable Raj Kumar of P.S. Haldwani. No material inconsistency has surfaced in the testimony of this eyewitness. 10. P.W.3 Dr. J.S. Pangti was posted on 27.12.1997 as Senior Surgeon in Soban Singh Jeena Base Hospital, Haldwani. The dead body of deceased Matloob Elahi aged 25 years was kept in mortuary under the supervision of constable Raj Kumar of P.S. Haldwani. The doctor had conducted the post mortem on the dead body of Matloob Elahi. Ante mortem injuries were found on the dead body of Matloob Elahi, a description of which may be found in the report and testimony of P.W.3 Dr. J.S.Pangti. 11. Dr. J.S. Pangti has proved his report (Ext.Ka-3). According to him cause of death was shock and excessive bleeding because of ante mortem injuries. 12. P.W.4 Karam Elahi knew the accused/appellants Saleem, Mansur and Afzal. Deceased Matloob Elahi was his brother. He used to purchase and sell buffaloes. Matloob had sold a buffalo to appellant Saleem for Rs. 3,500/- out of which Rs. 1,500/- had been paid to Matloob. The balance was Rs. 2,000/-. When Matloob demanded money, Saleem had beaten him before this incident. A report was lodged in P.S. Haldwani. Saleem and other appellants were inimical to Matloob on account of this fact. P.W.4 Karam Elahi supported the prosecution story. He also said that on 26.12.1997 at 7:00 p.m. his brother Matloob was sitting on the chair in front of the house of the Taufeeq and Israel was talking to him regarding purchase of buffalo. Servant Narayan Das was providing fodder to buffalos. This witness was collecting water from the water tap of municipality. A lamp post was there in front of Taufeeq’s residence. All the three appellants came from the south. Afzal and Saleem had country-made pistols in their hands and Mansur had knife in his hands. All the three appellants surrounded Matloob. Saleem started abusing his brother Matloob. He sarcastically remarked on him that he (Matloob) is involved in litigation, today they will give him (Matloob) the balance (of money). Instantly, Afzal and Saleem fired on Matloob with (country-made pistols) and Mansur tried to inflict a blow of knife on Matloob but the blade did not contact his body. Matloob fell on the ground. All the accused / appellants fled away from the place of occurrence. Matloob was taken to hospital but could not be saved. Many a people came to the hospital. Matloob fell on the ground. All the accused / appellants fled away from the place of occurrence. Matloob was taken to hospital but could not be saved. Many a people came to the hospital. A complaint was got written by this witness from his brother Azim Elahi. He has proved his signatures on complaint (Ext. Ka-1). The Investigating Officer collected simple soil and blood stained soil from the place of occurrence, prepared recovery memo (Ext. Ka-4) to this effect. P.W.4 Karam Elahi was a signatory to Ext. Ka-4. A very important fact has been stated by this witness regarding non-availability of servant Narayan Das. He was not available after the release of appellants from jail. Accussed/appellants have caused his disappearance, according to this witness. 13. P.W.5 Dy. S.P. Narendra Kumar Sharma, Hydel Vigilance, Bareilly was posted as Station Officer In-charge, P.S. Haldwani on 26.12.1997. He has proved chik FIR (Ext. Ka-5) which was lodged on the basis of complaint (Ext. Ka-1) of informant Karam Elahi. P.W.5 Narendra Kumar Sharma also proved copy of G.D. (Ext. Ka-6). This witness initiated the investigation of the case. He took the statement of informant Karam Elahi, went to hospital with him. Since it was dark (after sun set) therefore, no inquest could be conducted. Police force was deployed for the security of corpse. He prepared site plan (Ext. Ka-7), collected simple soil and blood stained soil (Ext. I to Ext. III), took the statement of the accused, affected arrest of Afzal who confessed his guilt and said that the country-made pistol which was used in the commission of crime may be got recovered near the bridge which is under construction. He tried to search the country-made pistol but the same could not be recovered. A memo (Ext. Ka-8) was prepared. On 07.01.1998 appellants Saleem and Mansur were arrested near burial ground gate at 2:50 p.m. One country-made pistol 12 bore and 3 live cartridges were found in his possession. A prohibited knife was found from the possession of another accused Mansur. Finally a charge sheet (Ext. Ka-9) was filed against them in the court. 14. Learned counsel for the appellants has submitted that out of two eyewitnesses, one is a chance witness and other is brother of the deceased. Servant Narayan Das who was giving fodder to the buffalo was not produced in evidence. Karam Elahi and deceased were brothers. Finally a charge sheet (Ext. Ka-9) was filed against them in the court. 14. Learned counsel for the appellants has submitted that out of two eyewitnesses, one is a chance witness and other is brother of the deceased. Servant Narayan Das who was giving fodder to the buffalo was not produced in evidence. Karam Elahi and deceased were brothers. There is difference in the site plan and the prosecution version. Learned counsel for the appellants also pointed out certain discrepancies in the map prepared by the Investigating Officer and oral evidence. Presence of Israel was also doubted. P.W.2 Israel was not aware of the names of the assailants. How did P.W.2 Isreal come to know of the names of the assailants? No test identification parade was conducted. It was also argued that the dead body was kept in the mortuary and therefore tampering was done with the corpse. The inquest was prepared the next day. Learned counsel also pointed out certain contradictions in the directions as told by the witnesses and as shown by the Investigation Officer in the site plan. 15. We are not inclined to accept any of the aforesaid contentions raised on behalf of the appellants. It is true that one of the witnesses is the brother of the deceased. The law does not indicate that the testimony of a related witness should be ignored altogether. The law enjoins upon the court to scrutinize the evidence of related witnesses carefully. 16. Let us have a close look on the cross-examination of P.W.4 Karam Elahi. He said that they were four brothers. One brother has been killed. He had stated correctly in statement under Section 161 Cr.P.C. that Mansur assaulted Matloob with knife. This witness resided jointly with other family members. They have three houses. Azim Elahi was his real brother. All of them resided jointly within the limits of municipal board. He studied upto class VI. He has knowledge about the directions. In the east of the place of occurrence was Taufeeq’s house. In the west was the house of Alladia, contractor; in the north was Abdul Bari’s house. There were connecting roads in the east-west and in north-south of the place of occurrence. These were thorough fares which have been constructed by the municipal board. He has knowledge about the directions. In the east of the place of occurrence was Taufeeq’s house. In the west was the house of Alladia, contractor; in the north was Abdul Bari’s house. There were connecting roads in the east-west and in north-south of the place of occurrence. These were thorough fares which have been constructed by the municipal board. Matloob was taken to hospital in sumo (TATA) car at 7:15 p.m. The hospital is situated at 50 paces from P.S. Haldwani (by shortcut). Although, Khurana Hospital is nearer to the place where the occurrence took place, but they did not think it proper to admit Matloob in the said hospital. Matloob was taken to the Government Hospital. There is a police reporting outpost at Banphulpura. Akhlaque was servant of Matloob. He came on hearing the sound of fire. This witness said that he was not present when inquest was conducted because he went straight away from hospital to the police station. The complaint was got written by this witness from Azim Elahi. The post mortem on the dead body of Matloob Elahi was conducted on 27.12.1997. P.W.4 Karam Elahi saw the assailants when they were about to reach there. Karam Elahi was about to go to his maternal uncle (Taufeeq) who resided near the place of occurrence. When Saleem started abusing, this witness was standing at the water tap. The assailants fled away soon after killing Matloob. He chased the assailants. None of the family members of Taufeeq came to the place of occurrence. There was a lamppost near the house of Taufeeq and in front of Shahid’s shop. Israel was talking to him regarding the purchase of buffalo and in the mean while Matloob Elahi came and started talking to Israel. In the mean time this witness went to fill-up water for baffalo. When Israel was talking to Matloob his brother was facing west and Israel was facing north. Matloob kept on sitting on the chair when the assailants hurled abuses on him. First of all Afzal fired on his brother, thereafter Mansur assaulted with knife and then Saleem fired on him. He has clarified that he mentioned in the FIR that Mansur made an assault with knife but has not said anything about the injuries sustained by the victim. He did not go back to hospital after lodging FIR. First of all Afzal fired on his brother, thereafter Mansur assaulted with knife and then Saleem fired on him. He has clarified that he mentioned in the FIR that Mansur made an assault with knife but has not said anything about the injuries sustained by the victim. He did not go back to hospital after lodging FIR. He went to the place of occurrence with Inspector Sharma after half an hour of the incident. Thus nothing has come out in the cross-examination of this witness whereby the court may disbelieve his testimony. There is no reason to disbelieve the eyewitness account given by P.W.4 Karam Elahi. 17. So far as the contention of learned counsel for the appellants that Karam Elahi is a chance witness is concerned, the same falls on the ground in view of the fact that Karam Elahi had come there to negotiate purchase of buffalos. He had come there for a ‘purpose’. Otherwise he would have been termed as a ‘chance witness’. 18. So far as the argument of non-production of Narayan Das is concerned, it is true that servant of the deceased was not produced on behalf of the prosecution. But it has come on evidence that Narayan Das was not available since the day the appellants were released form jail (on bail). He could not be traced out. The explanation for non-production of Narayan Das is sufficient. Otherwise also, it is the quality of evidence which matters and not the number of witnesses. So in view of this aspect of the matter, non-production of Narayan Das by the prosecution is of no consequence. He was not a very important witness either. 19. Karam Elahi who had come there to negotiate purchase of buffaloes is a witness worth credence. It cannot be said that Karan Elahi has not seen the incident. The argument thus advanced on behalf of the appellants that Israel and Karam Elahi were not present on the spot is based on conjectures and surmises. 20. The motive to commit the crime is clear. Saleem had a case against Matloob pending in the Court of Magistrate at Haldwani. They were some realisable dues against Saleem. There was enmity of Saleem with the deceased in this behalf. 21. 20. The motive to commit the crime is clear. Saleem had a case against Matloob pending in the Court of Magistrate at Haldwani. They were some realisable dues against Saleem. There was enmity of Saleem with the deceased in this behalf. 21. It is not a case in which the test identification parade of the accused/appellants was desirable, inasmuch as the appellants were named in the FIR and the witnesses knew the appellants from before this incident took place. 22. There was no question of tampering with the body of deceased because it has come on evidence that the same was kept in mortuary under the supervision of local police. It is an unwritten law that the post mortem cannot be conducted after the sunset without the written orders of the District Magistrate. Usually the post mortem is conducted after the inquest. The Investigating Officer said in his statement that since it was dark therefore, he did not go for inquest and hence, the dead body was kept in mortuary under the security of police. So there is no question of tampering with the corpse. 23. Arguments were also advanced with regard to the directions, i.e. that the assailants came from this direction and went in that direction. It has been contended that the oral testimony is contradictory to what has been indicated in the site plan. A close look at the oral testimony and contents of site plan would reveal that there is no material-inconsistency in two versions. Witnesses are often hypnotised by asking questions after questions on the directions. Moreover, the law is settled on the point that the prosecution cannot be faulted for the minor mistakes committed by the Investigating Officer in conducting investigation. There is nothing unusual in this aspect of the case also. 24. It has also been submitted on behalf of the appellants that there was no injury of knife on the person of the deceased. This court is of the view that nowhere in the prosecution story it has come that the deceased was inflicted blow of knife. It is the case of prosecution that two accused were having country-made pistols and they fired on the deceased. The third assailant waived his knife but the blow of the same could not be inflicted be on Matloob because he fell on the ground. The argument thus advanced has no legs to stand. 25. It is the case of prosecution that two accused were having country-made pistols and they fired on the deceased. The third assailant waived his knife but the blow of the same could not be inflicted be on Matloob because he fell on the ground. The argument thus advanced has no legs to stand. 25. The eyewitnesses saw the incident, narrated the same before the court. There is no material-contradiction in their testimony. The same is duly supported by the medical evidence. Prosecution has been able to prove its case against the appellants beyond reasonable doubt. The learned trial court has rightly convicted the accused persons. We see no reason to interfere with the findings dated 11.09.2002 arrived at by learned trial court. 26. This court has no hesitation in coming to the conclusion that the prosecution has been able to prove its case against the appellants beyond reasonable doubt. 27. The appeal preferred by appellants Saleem and Mansur is therefore, dismissed. The order of conviction passed by the trial court on 10.09.2002 is hereby affirmed. The order of sentence awarded to the accused/appellants Saleem and Mansur by learned trial court is also affirmed. Appellants Saleem and Mansur are on bail. Their bail is cancelled. They are directed to surrender before the court concerned to serve out the sentence awarded to them by the trial court and affirmed by this court. 28. Let a copy of this order as well as the lower court record be sent back to enable the court concerned to carry out this order. 29. Criminal Misc. Application No. 4643/2011 was moved on behalf of appellant Mohd. Afzal that he was a juvenile on 26.12.1997 as his date of birth was 05.07.1980. A school leaving certificate issued by Madarsa Azad Primary School, Lane No.13, Azad Nagar, Haldwani (Nainital) has been annexed with the application to show that his date of birth was 05.07.1980. It is submitted on behalf of learned counsel for Mohd. Afzal that he passed out class I from this school. 30. We are unable to accept the contention of the learned counsel for appellant Afzal, in view of Rule 12 of the Juvenile Justice (Care & Protection of Children) Rules, 2007. It is an admitted fact that Afzal has not done matriculation. Therefore, there was no possibility of obtaining matriculation or equivalent certificate. 30. We are unable to accept the contention of the learned counsel for appellant Afzal, in view of Rule 12 of the Juvenile Justice (Care & Protection of Children) Rules, 2007. It is an admitted fact that Afzal has not done matriculation. Therefore, there was no possibility of obtaining matriculation or equivalent certificate. Further under Rule 12 of the Juvenile Justice (Care & Protection of Children) Rules, 2007, there is no contemplation of accepting school leaving certificate for adjudging juvenility of a person. Therefore, this court is of the view that the appellant Mohd. Afzal has not been able to prove that he was a juvenile on the date of incident. 31. Under Clause (h) of Section 2 of Juvenile Justice Act, 1986, which came into force on 2nd October, 1987, until the said Act was repealed by the Juvenile Justice (Care and Protection of Children) Act, 2000, which came into effect on 30th December, 2000, “juvenile” meant a boy who has not attained the age of sixteen years or a girl who has not attained the age of eighteen years. In the instant case, a murder took place on 26.12.1997 when the Juvenile Justice Act, 1986 was in force. In connection with the said murder a charge was framed, where it was alleged that the appellant Mohd. Afzal is said to have committed the murder. The trial court convicted the appellant on being satisfied on the evidence on record that the charge of murder against the appellant Mohd. Afzal stands proved. Being aggrieved thereby, the present appeal was preferred in 2002. 32. A proviso and an explanation were appended to section 20 of the Juvenile Justice (Care and Protection of Children) Act, 2000, along with sub section (4) of Section 1 and Section 7A. By reason of the explanation thus appended to Section 20 it became obligatory to take notice of the age of a juvenile in conflict with Law as mentioned in the Juvenile Justice (Care and Protection of Children) Act, 2000 and as given in clause (l) of Section 2 thereof, which in turn provides that a Juvenile in conflict of Law would be he who had not completed 18 years of age on the date of incident in respect whereof he has been implicated. In terms of sub section (4) of Section 1 of the Act, the provisions of the Act shall apply to all cases involving detention, prosecution or sentence of imprisonment of juveniles. By reason of Section 7A, the juvenile became entitled to have his juvenility examined at any stage of any proceeding pending at any court. In such view of the matter a drastic change was brought in Section 20 of the Juvenile Justice (Care and Protection of Children) Act, 2000, which provides that the proceeding in respect of juvenile pending in any court will continue in that court proceeding on the basis as if the Juvenile Justice (Care and Protection of Children) Act, 2000 has not come into force with imposition of an obligation on the court to forward its finding to the Board, in case offence committed by a juvenile is accepted, for passing such orders on the basis of such finding. In other words, only in case juvenility of a person is ascertained in accordance with the law applicable at the time of committing the offence and such a person was involved with the offence then only Section 20 prescribed the procedure as mentioned therein. Section 20 of its own did not direct that in such case, juvenility shall be determined in accordance with the provisions of the Juvenile Justice (Care and Protection of Children) Act, 2000. The same was however, stated in so many words while the explanation appended to Section 20 was added. In the circumstances, as called upon by Section 20 of the Act, we have no other option but to set aside the sentence as awarded by the trial court and to forward the Juvenile to the Juvenile Justice Board, Nainital for the purpose of passing such order in respect of the appellant in accordance with the provisions of the Juvenile Justice (Care and Protection of Children) Act, 2000, proceeding on the basis that the appellant while juvenile had committed a gruesome offence of murder. This order, however, will not prevent the Juvenile Justice Board, Nainital to review the case and pass appropriate order in the interest of the juvenile, but however, before reviewing the case it must record adequate and special reasons as are required to be recorded in terms of the proviso to Section 20 of the Act. 33. This order, however, will not prevent the Juvenile Justice Board, Nainital to review the case and pass appropriate order in the interest of the juvenile, but however, before reviewing the case it must record adequate and special reasons as are required to be recorded in terms of the proviso to Section 20 of the Act. 33. Therefore, in respect of the accused / appellant Afzal, this court is of the view that the evidence has correctly been appreciated by the learned trial court. We at the same time affirm the sentence as awarded by the trial court against him, but forward the appellant Afzal to the Juvenile Justice Board, Nainital for the purpose of passing order in respect of Juvenility of the said appellant in accordance with the provisions of Juvenile Justice (Care and Protection of Children) Act, 2000 and Juvenile Justice (Care and Protection of Children) Rules, 2007 as directed above. In the event it is found that the said appellant was a Juvenile at the time of commission of the offence, the said board will deal with the matter in accordance with law, but if not, ensure handing over of the custody of the said appellant to the trial court so as to ensure that the said appellant serves out the remaining sentence. 34. The appellant Afzal, who is on bail, is directed to be present before the Juvenile Justice Board, Nainital with a certified copy of this order on 10th February, 2012, whereafter, the matter shall be dealt with by the Juvenile Justice Board, Nainital and thereafter by the trial court, if required. The prosecution is directed to ensure that the records and papers in connection with the incident in question are placed before the Juvenile Justice Board, Nainital at the appropriate time.