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2012 DIGILAW 454 (PNJ)

Janta Singh v. State of Punjab

2012-03-15

A.N.JINDAL, HEMANT GUPTA

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JUDGMENT A.N. Jindal, J Accused-appellants (herein referred as, 'the accused') were put to dock for causing murder of Mander Singh. Consequently, vide judgment dated 31.1.2002, they were convicted and sentenced as under :- Janta Singh U/s 302 IPC : Rigorous imprisonment for life and to pay fine of Rs.10,000/-. Nahra Singh, Jaggi Singh and Kochar Singh U/s 302/34 IPC : Rigorous imprisonment for life and to pay fine of Rs.10,000/- each. The accused Jaggi Singh was above 16 and below 18 years of age at the time of commission of crime, before the amendment of the Juvenile Justice (Care and Protection of Children) Act, 2000. The present report dated 1.9.2011 also proves this fact. Since he has been tried along with other accused, therefore, his appeal is also being decided along with the appeal of the other accused. The facts in nutshell, are that on 26.2.2000, Surjit Kaur (PW2) along with her husband Gora Singh and son Mandar Singh were going to the house of Baru Singh for fetching Gur (Jaggery) and fuel wood as a labour for crushing his sugarcane. At about 5.30 PM, when they reached near Smadh (Tomb of Baba Sidh Bhoi), her son Mandar Singh was going ahead of them. In the meantime, Kochar Singh and Jaggi Singh sons of Mandar Singh and Madha Singh, Nahra Singh and Janta Singh sons of Nek Singh, all accused armed with gandasas came from the opposite side. Kochar Singh and Jaggi Singh raised alarm that Mandar Singh be not left alive and be taught a lesson for causing injuries to their father, whereupon, Jaggi Singh and Nahra Singh inflicted gandasa blows hitting Mandar Singh on his left arm; Kochar Singh inflicted gandasa blow on the shank of his right leg; and Janta Singh inflicted gandasa blow on his head. Consequently, Mandar Singh fell down and succumbed to his injuries, whereupon, the accused decamped with their respective weapons. The motive behind the occurrence is that, previously, Mandar Singh had caused injuries to Mandar Singh alias Madha Singh, father of Jaggi Singh and Kochar Singh, therefore, in order to wreak vengeance, the accused caused injuries to him. On the aforesaid statement Ex.PD made by Surjit Kaur to Inspector Chuhar Singh, Investigating Officer, FIR Ex.PD/2 was registered against the accused. The motive behind the occurrence is that, previously, Mandar Singh had caused injuries to Mandar Singh alias Madha Singh, father of Jaggi Singh and Kochar Singh, therefore, in order to wreak vengeance, the accused caused injuries to him. On the aforesaid statement Ex.PD made by Surjit Kaur to Inspector Chuhar Singh, Investigating Officer, FIR Ex.PD/2 was registered against the accused. The Investigating Officer accompanied by Surjit Kaur visited the place of occurrence; prepared the inquest report Ex.PC and sent the dead body for postmortem examination. On the next day, he lifted the blood stained earth as well as simple earth from the spot converted it into parcels and took the same into possession. He prepared the rough site plan Ex.PJ of the place of occurrence and went to the Civil Hospital, Jhunir where he was handed over clothes of the deceased which he took into possession vide memo Ex.PK. On 3.3.2000, he arrested the accused Janta Singh and Jaggi Singh. On 5.3.2000, the accused Nahra Singh and Jaggi Singh were arrested and he got recovered gandasa Ex.P1 and Ex.P2 respectively from them pursuant to the disclosure statements made by them. On completion of the investigation all the aforesaid three accused were challaned. Later on, accused Kochar Singh was summoned to face trial along with the other accused. All the accused were charged under Section 302 read with Section 34 IPC, to which they pleaded not guilty and claimed trial. In order to substantiate the charges, the prosecution examined Dr. Sohan Lal (PW1), Surjit Kaur (PW2), Gora Singh (PW3), Inspector Chuhar Singh (PW4), Ravinder Kumar Goyal (PW5), HC Prem Kumar (PW6) and C. Hamir Singh (PW7). When examined under Section 313 Cr.P.C. the accused denied all the incriminating circumstances appearing against them and pleaded their false implication in the case. Accused Nahra Singh further explained as under :- “I am innocent. I was coming from the house of my Siri Mandar Singh. At about 8.00 p.m. Mandar Singh deceased gave a gandasa blow on my head from behind. I also gave the injuries in my self defence. On next day, I and my Siri, Mandar Singh went to the Police Station, Jhunir for information. The officer incharge of the Police Station made me to sit there. I did not attack the deceased intentionally. Accused Kochar Singh further explained as under :- “I am innocent. I also gave the injuries in my self defence. On next day, I and my Siri, Mandar Singh went to the Police Station, Jhunir for information. The officer incharge of the Police Station made me to sit there. I did not attack the deceased intentionally. Accused Kochar Singh further explained as under :- “I am innocent. I have been falsely implicated in this case. On 26.2.2000, the quarrel took place between Mandar Singh, deceased and Nahra Singh co-accused. I was not present at the spot at the time of alleged occurrence. I did not attack the deceased.” In defence, the accused examined Dr. Asha Kiran (DW1), Mandar Singh son of Kaur Singh (DW2), Baru Singh (DW3) and Satnam Singh (DW4). The trial resulted into conviction. Arguments heard. Record perused. The first contention raised by the learned counsel for the appellant is that the motive qua commission of crime does not stand established. In this regard, Surjit Kaur (PW2) has categorically stated that about 17 years back, Mandar Singh had picked up a quarrel with the father of Jaggi Singh and Kochar Singh wherein he had caused injuries to him and the accused were having grudge on that account. It is obvious that when the deceased had caused injuries to the father of Jaggi Singh and Kochar Singh, both the accused in the case, then certainly they must be in search of opportunity to have the vengeance from the deceased. Her testimony stands corroborated by Gora Singh (PW3) who has also reiterated the same version to establish the motive. We do not countenance the contention raised by the learned counsel for the appellants that the story with regard to going of Surjit Kaur, Gora Singh and Mandar Singh (deceased) for fetching fire wood from the house of Baru Singh is false. This fact has also been established by both the witnesses. They having done labour at the house of Baru Singh were supposed to collect their wages in the shape of Gur (Jaggery) and wood fuel from the latter as per terms. Non examination of Baru Singh hardly falsifies the aforesaid version. No doubt, Baru Singh was not examined by the prosecution but he appeared in defence. They having done labour at the house of Baru Singh were supposed to collect their wages in the shape of Gur (Jaggery) and wood fuel from the latter as per terms. Non examination of Baru Singh hardly falsifies the aforesaid version. No doubt, Baru Singh was not examined by the prosecution but he appeared in defence. His testimony cannot be believed as he never joined the investigation to depose about the said fact, but now at the fag end of the case, he appears to have been influenced at the hands of the accused, therefore, he came to contend in their favour. Had there been some truth in the story as set up by Baru Singh during defence, then he would have disclosed the same to the Investigating Officer at the very initial stage and apprised him all the facts. Such deposition at the fag end of the case invites the inference regarding his hostility towards the prosecution. As regards the next contention with regard to delay in lodging the FIR, it is observed that the occurrence had taken place at 5.30 PM, whereas statement of Surjit Kaur was recorded on the same day at 8.30 PM According to the evidence, the distance from the village Bhalaike (place of occurrence) and the Police Station Jhunir as recorded in the column of the First Information Report is six kilometers, therefore, some time must have been consumed by Surjit Kaur to make balance of herself, to take care of the dead body and then to proceed to the police station for recording the FIR. If we calculate the time consumed, then it could easily be inferred that the First Information Report was lodged with promptitude. The FIR is not vague in nature. It contains names of all the accused and the weapons carried by them. Thus, the argument that there is delay in lodging the FIR, is held to be unsubstantiated. It was day time occurrence. Both the witnesses namely Surjit Kaur (PW2) and Gora Singh (PW3), whose presence is quite probable and natural, have fully supported the prosecution version and their testimony synchronizes with the medical evidence as given by Dr. Sohan Lal (PW1), who on 27.2.2000, at about 10.00 AM, while conducting postmortem examination of the dead body of the deceased Mandar Singh, found the following injuries on his person :- 1. Sohan Lal (PW1), who on 27.2.2000, at about 10.00 AM, while conducting postmortem examination of the dead body of the deceased Mandar Singh, found the following injuries on his person :- 1. An incised wound on the scalp on occipital area measuring about 7 x 3 cms in size, horizontally placed underlying bone was cut and brain matter was visible. Clotted blood was present. 2. An incised wound on left elbow measuring 7 x 2 cms in size which was bone deep. Clotted blood was present. 3. An incised superficial wound was present on ventral aspect of left forearm, about 5 cms below cubical fossa. 4. An abrasion on the anterior aspect of right leg below the knee joint. On opening of the skull, the occipital bone was cut and underlying brain matter was cut and clotted blood was present in the skull cavity. Thorax Lungs, heart and pleurae were congested. Abdomen Liver, spleen, kidneys were congested. Stomach contained 450 mls of chyled matter. Bladder was empty.” According to him the injuries No.1 to 4 were sufficient to cause death in the ordinary course of nature and the duration of the injuries and death was instantaneous and the time elapsed between the death and the postmortem examination was within 24 hours. On critical analysis of the medical evidence and the ocular version, it transpires that the same are consistent with each other. Mr. K.S. Sidhu, Senior Advocate has further urged that Surjit Kaur (PW2), during her cross- examination has stated that about 20 persons were playing cards nearby the place of occurrence, but none of them has been examined. In this regard it may be observed that it is not the quantity of evidence which weighs but the quality. The people in this part of the country prefer to stay away and withheld themselves to support the cause of one party, obviously for the reasons that they would not be benefitted while deposing in favour of one and against the other, rather they purchase enmity of the accused for deposing against them. Even otherwise, there is sufficient consistent ocular version on the record, having support of the medical evidence, therefore, non examination of the independent witness in the given circumstances of the case, becomes insignificant. Even otherwise, there is sufficient consistent ocular version on the record, having support of the medical evidence, therefore, non examination of the independent witness in the given circumstances of the case, becomes insignificant. The learned counsel has tried to build the case further by urging that there are certain discrepancies in the statements of the witnesses inasmuch as Gore Singh (PW3) states that the occurrence had taken place about 1- ½ years ago, whereas, according to Surjit Kaur (PW2), the occurrence had taken place on 26.2.2000. Gore Singh (PW3) has given his age as 65 years, whereas, Surjit Kaur (PW2) has given her age as 50-55 years. Having scrutinized the aforesaid discrepancies and having observed that the witnesses are illiterate and rustic villagers, such minor discrepancies are bound to occur in the statements of such rustic persons with the passage of time and the same being minor in nature do not affect the substratum of the prosecution case. Both the witnesses are quite consistent on the material aspects of the case. They have described as to which of the accused caused which injury. These two witnesses were subjected to cross- examination at length but nothing fruitful could be elicited from their testimonies which may be sufficient to cause a dent in the prosecution case. As regards the plea that the prosecution has failed to explain injuries on the person of Nahra Singh son of Nek Singh, therefore, benefit should be extended to them. In this regard it may be observed that only following simple injury was found on the person of Nahra Singh on his examination on 6.3.2000 :- 1. A wound of size 5.5 cms diameter present on left temporal region. Its lower and just near the upper border of left pinna. Reddish granulation tissues over the whole surface of wound present. Epithelisation of wound present over the margin. No pus point seen. Scab present over the wound. The doctor opined that the injury could be possible with sharp edged weapon. This simple injury on the person of Nahra Singh does not help the case of the accused in any manner. The occurrence had taken place on 26.2.2000 and Nahra Singh did not produce himself before the doctor immediately after the occurrence for medical examination. The doctor opined that the injury could be possible with sharp edged weapon. This simple injury on the person of Nahra Singh does not help the case of the accused in any manner. The occurrence had taken place on 26.2.2000 and Nahra Singh did not produce himself before the doctor immediately after the occurrence for medical examination. Further the injury is found simple in nature and medical witness has also deposed that she has not mentioned the nature of weapon with which the injury was received by Nahra Singh. The doctor has also stated the possibility of injury as a result of fall of the accused on the bricks cannot be ruled out. Had this injury been the result of the same occurrence, then the accused Nahra Singh must have presented himself before the doctor without any delay. Though the accused has stated that the injury was caused with the gandasa a sharp edged weapon, yet Dr. Asha Kiran (DW1) has stated that the injury could not be possible with the sharp edged weapon. Thus, the nature of the injury itself falsifies the plea of Nahra Singh as to his having received the injuries at the hands of the deceased. Consequently, we do not find any merit in the defence as set up by the accused. Now coming to the plea with regard to minority of Jaggi Singh and to extend him benefit of Juvenile Justice (Care and Protection of Children) Act, 2000 (in short, 2000 Act') . The present case was registered on 26.2.2000. The accused set up the plea of his being juvenile at that time, but the court on enquiry vide order dated found him to be aged above 16 years and did not treat him as juvenile. The earlier Act i.e. Juvenile Justice Act, 1986 was replaced by the Act of 2000. Later on, vide Amended Act 33 of 2006, clause (l) in Section 2 of the 2000 Act, was inserted which relates to the definition of “juvenile in conflict with law”. The earlier Act i.e. Juvenile Justice Act, 1986 was replaced by the Act of 2000. Later on, vide Amended Act 33 of 2006, clause (l) in Section 2 of the 2000 Act, was inserted which relates to the definition of “juvenile in conflict with law”. Clause (l) of Section 2 of 2000 Act, reads as under : “(l) “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.” Admittedly, Jaggi Singh accused was less than 18 years of age at the time of commission of the crime but had completed the age of 18 years at the time of the Act of 2000 came into force ( w.e.f. 1.4.2001). Now the question arises, “whether benefit of juvenility could be extended even to a juvenile who had completed the age of 18 years on 24.4.2000 i.e. during the pendency of the trial and whether the Act shall have retrospective effect?” The said controversy arose in case of Pratap Singh vs. State of Jharkhand & Anr. 2005 (1) R.C.R. (Criminal) 836 wherein the Constitutional Bench observed that benefit of juvenility cannot be extended to a person who had completed 18 years of age as on 1.4.2001 i.e. the date of enforcement of the Act. In the background of the aforesaid judgment, the Legislature brought Amendment Act 33 of 2006 wherein proviso to Section 20 was added which reads as under :- “20. In the background of the aforesaid judgment, the Legislature brought Amendment Act 33 of 2006 wherein proviso to Section 20 was added which reads as under :- “20. Special provision in respect of pending cases - Notwithstanding anything contained in this Act, all proceedings in respect of 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: Provided that the Board may, for any adequate and special reason to be mentioned in the order, review the case and pass appropriate order in the interest of such juvenile. Explanation – In all pending cases including trial, revision, appeal or any other criminal proceedings in respect of a juvenile in conflict with law, in any court, the determination of juvenility of such a juvenile shall be in terms of clause (1) of Section 2, even if the juvenile ceases to be so on or before the date of commencement of this Act and the provisions of this Act shall apply as if the said provisions had been in force, for all purposes and at all material times when the alleged offence was committed.” From the bare reading of the proviso it transpires that the Act of 2006 was made applicable even to the cases pending as on 1.4.2001. In other words, wherein the juvenile was above 16 years of age at the time of commission of offence, could be treated as juvenile under the amended act and the amended Act would have retrospective effect. The benefit could be extended at any stage of the proceedings pending against him, including not only the trials but even subsequent proceedings by way of revision or appeal. The benefit could be extended at any stage of the proceedings pending against him, including not only the trials but even subsequent proceedings by way of revision or appeal. The determination of the juvenility of the juvenile should be as per Clause I of Section 2, even if the juvenile was ceased to be a juvenile on or before 1.4.2001, when the Act came into force and the provisions of the Act would apply as if the said provisions were enforced for all purposes and for all material times when the alleged offence was committed. After the amendment in the year 2000, the Act was further amended in the year 2006 and the rules were framed in 2007. Section 20 of the Act empowers the court to determine about the juvenility of the minor even after conviction by the regular court and the court was vested with all powers to set aside the sentence imposed or forward the case to the Board concerned for passing sentence in accordance with the provisions of the Act. Section 7-A of the Amended Act confers wide powers to the court to hold such inquiry, which reads as under :- “7A. Procedure to be followed when claim of juvenility is raised before any court. (1) Whenever a claim of juvenility is raised before any court or a court is of the opinion that an accused person was a juvenile on the date of commission of the offence, the court shall make an inquiry, take such evidence as may be necessary (but not an affidavit) so as to determine the age of such person, and shall record a finding whether the person is a juvenile or a child or not, stating his age as nearly as may be : Provided that a claim of juvenility may be raised before any court and it shall be recognized at any stage, even after final disposal of the case, and such claim shall be determined in terms of the provisions contained in this Act and the rules made thereunder, even if the juvenile has ceased to be so on or before the date of commencement of this Act. (2) If the court finds a person to be a juvenile on the date of commission of the offence under sub-section (1), it shall forward the juvenile to the Board for passing appropriate orders and the sentence, if any, passed by a court shall be deemed to have no effect.” After examining the judgments delivered in cases Amit Singh vs. State of M.P., Criminal Case No.64 of 1997, Hari Ram v. State of Rajasthan, 2009 (2) R.C.R. (Criminal) 878; Pratap Singh v. State of Jharkhand, 2005 (1) R.C.R. (Criminal) 836: and Shah Nawaz v. State of U.P., Criminal Appeal No. 1531 of 2011, SLP (Criminal) No.3361 of 2011, decided on 5.8.2011, the Apex Court in case Amit Singh vs. State of Maharashtra and another, 2011 (3) R.C.R. (Criminal) 859 while taking into consideration the provisions of Section 7-A of the Amended Act No.33 of 2006 and Juvenile Justice (Care and Protection of Children) Rules, 2007 (For short, “the Rules”), Rule 98 in particular, observed as under :- “It is clear from the above provision, namely, Section 7A the claim of juvenility to be raised before any court at any stage, even after final disposal of the case and sets out the procedure which the court is required to adopt, when such claim of juvenility is raised. Apart from the aforesaid provisions of the Act as amended, and the Juvenile Justice (Care and Protection of Children) Rules, 2007 (in short 'the Rules') Rule 98, in particular, has to be read along with Section 20 of the Act as amended by the Amendment Act, 2006 which provides that even after disposal of cases of juvenile in conflict with law, the State Government or the Board could, either suo motu or on an application made for the purpose, review the case of juvenile, determine the juvenility and pass an appropriate order under Section 64 of the Act for immediate release of the juvenile whose period of detention had exceeded the maximum period provided in Section 15 of the Act i.e. 3 years. All the above relevant provisions including the amended provisions of the Act and the Rules have been elaborately considered by this Court in Hari Ram (supra).” The Division Bench of the Delhi High Court in case Sayyed Mirazuddin alias Miraz vs. State (NCT of Delhi), 2006 (4) R.C.R. Criminal 364 also took the similar view. All the above relevant provisions including the amended provisions of the Act and the Rules have been elaborately considered by this Court in Hari Ram (supra).” The Division Bench of the Delhi High Court in case Sayyed Mirazuddin alias Miraz vs. State (NCT of Delhi), 2006 (4) R.C.R. Criminal 364 also took the similar view. After taking into consideration the verdict given in Hari Ram's case (supra), the Division Bench of Madras High Court in case A. Chinnaponnu w/o Annamalai vs. State of Tamil Nadu rep by the Secretary, (Department of Home), Fort St. George, Chennai-9 and others, 2011 (3) MLJ (Criminal) 433 also took the similar view. In the instant case also, though the accused was juvenile at the time of commission of the crime and he became 18 yeas old i.e. during the pendency of the proceedings, but before coming into force of the Amendment Act No.33 of 2006 and the Rules, 2007, yet, the same being retrospective in nature, the accused Jaggi Singh could be extended benefit of the said provisions. The accused Jaggi Singh is in jail since then, which is more than a maximum period for which a juvenile may be confined in a special home. Under these circumstances, we do not deem it appropriate to restore the custody of the accused Jaggi Singh for undergoing further sentence. As such, the appeal qua Jaggi Singh is dismissed with the modification in the sentence which is reduced to that of already undergone by him. However, the appeal qua the remaining accused stands dismissed. Accused Janta Singh, Nahra Singh and Kochar Singh are on bail. They are directed to surrender before the concerned authorities failing which Chief Judicial Magistrate, Mansa to issue the arrest warrant against them for undergoing the remaining period of sentence awarded by the trial court.