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2016 DIGILAW 3079 (ALL)

SADHU v. STATE OF U. P.

2016-09-08

ANIL KUMAR, RANJANA PANDYA

body2016
JUDGMENT Hon’ble Mrs. Ranjana Pandya, J.—This appeal has been preferred against the judgment and order dated 12.11.1982, passed by 5th Additional Sessions Judge, Lucknow, in S.T. No. 343 of 1981, under Section 302 I.P.C., P.S. Malihabad, District Lucknow, whereby the accused Sadhu @ Ram Chandra was found guilty and convicted under Section 302 and sentenced to imprisonment for life. 2. Prosecution case in brief is that One Changa, accused Sadhu and Pyare Lal Gosai husband of the deceased Smt. Kundala @ Shanti were the brothers that Pyare Lal had died about two and half years or three years before the incident which took place on 26.5.1981 that Pyare Lal has left behind him his wife the deceased and four daughters out of whom Km. Sohana is PW-1 and Smt. Mohana the complainant is PW-2, that after the death of Pyarey Lal, said Changa and accused Sadhu in order to grab the properties of Pyare Lal used to press the deceased to transfer it in their favour, that the deceased was not agreeable to proposal of the accused Sadhu and his brother Changa and in this respect an altercation used to take place between them that besides it Changa and accused Sadhu in order to purchase a pumping set has taken cash loan of Rs. 3000/- from the deceased Kundala, that the deceased had settle the marriage of the complainant Mohana PW-2 with the younger brother of the husband of the eldest daughter Smt. Kamla (not examined) in village Mohamaci, P.S. Shandila and thus prior to the incident the deceased Kundala demanded back the said loan amount from Changa and accused Sadhu, that both of them denied to pay the said amount and threatened to kill Smt. Kundala, that Changa and accused Sadhu had told to people of village also that they would kill Smt. Kundala if she would remain in the village and thereafter both of them has disappeared from the village. 3. It is further alleged that in the evening of the day of incident when the sun had not set Smt. Kundala alongwith her two daughters Km. Sohana PW-1 and Smt. Mohana PW-2 was sitting on the gate of her house and was taking food. The accused Sadhu accompanied with three other persons armed with guns came there and said to Km. Sohana PW-1 and Smt. Mohana PW-2 to get away, that the moment Smt. Mohana and Km. Sohana PW-1 and Smt. Mohana PW-2 was sitting on the gate of her house and was taking food. The accused Sadhu accompanied with three other persons armed with guns came there and said to Km. Sohana PW-1 and Smt. Mohana PW-2 to get away, that the moment Smt. Mohana and Km. Sohana slightly moved away, the accused Sadhu fired his gun at Smt Kundala who after receiving the gun shot rolled down on the ground and then one of the companion of accused Sadhu also fired at Smt. Kundala. That Smt. Kundala died on the spot due to gun shot injuries received by her, that both the sisters Smt. Mohana and Km. Sohana began to raise alarm and on their hue and cry many people of village collected on the spot. That when the witnesses reached on the spot accused Sadhu and his companion ran away from the side of the door of the house of Gaya (not examined). That in the light of setting sun Smt. Mohana and Km. Sohana saw the accused and recognised Sadhu by name and other culprits were seen and recognized by their faces, that thereafter Smt. Mohana requested to three or four persons to lodge the report of the incident at police station, but as it had become dark and due to fear also none of them became ready to go to the police station at that time, that then in the morning of 22.5.1981 after leaving dead body under the custody of constables who has arrived on the spot Smt. Mohana accompanied with Chunni the village Chowkidar went to P.S. Malihabad, Lucknow which was at a distance of 10 miles from the spot and lodged oral report there at 08:15 a.m. Sri Kamta Prasad PW-4, was posted as Head Moharrir at P.S. Malihabad, who on the dictation of Smt. Mohana scribed the report and prepared the chik First Information Report Exhibit Ka-1, according to law and then he registered the case in the General Diary on report No. 14 at 08:15 a.m. dated 27.5.1981. Its copy is Exhibit Ka-11. Sri Srawan Singh S.I. PW-5 was then posted as Station Incharge of P.S. Malihabad. He received the investigation of the case on the same day i.e. 20.5.1981 and immediately went to the spot. S.I. B.K. Rai PW-3, S.I. S.P. Tripathi and S.I. K.S. Misra (both not examined) has accompanied the I.O. to the spot. Its copy is Exhibit Ka-11. Sri Srawan Singh S.I. PW-5 was then posted as Station Incharge of P.S. Malihabad. He received the investigation of the case on the same day i.e. 20.5.1981 and immediately went to the spot. S.I. B.K. Rai PW-3, S.I. S.P. Tripathi and S.I. K.S. Misra (both not examined) has accompanied the I.O. to the spot. On the spot S.I. B.K. Rai PW-3, on the instruction of the I.O. held inquest on the dead body and nominated the panches and obtained their opinion regarding the injuries present on the dead body of Smt. Kundala and then he prepared Panchayatnama Exhibit Ka-2 of the dead body according to rule. He further wrote letter Exhibit Ka-3 and Exhibit Ka-4 addressed to Chief Medical Officer, Lucknow for the post-mortem examination of the dead body and taking into possession of the dhoti material Exhibit -4 from the dead body. He then prepared diagram of the dead body, chalan of dead body, sample seal marked as Exhibit Ka-5, Ka-6 and Ka-7 respectively. He took in his possession the 8 glass bangles Exhibit Ka-5/1 to 5/8 and ornaments, two earnings Exhibit 6/1 and 6/2 and 1 nose nail Exhibit -7 from the dead body vide memo Exhibit Ka-8. He then took in his possession the blood stained earth and plain earth Exhibit 8 and Exhibit -9 and sealed them in two different dibbas and the spot and marked it as Exhibit Ka-9 before the witnesses. He also took in his possession one tikli of card board and one tikli of plastic of the wads and one was marked as Exhibit -10, Exhibit -11 and Exhibit -12 respectively, found on the spot and prepared its memo Exhibit Ka-10 and sealed them on the spot before the witnesses. Thereafter the sealed dead body of Smt Kundala was handed over to constable Umesh Chandra Tewari C.P. No. 2394 PW-6 at 12:10 p.m. on 27.5.1981 on the spot for getting the post-mortem examination of the dead body done, on the spot. The I.O. recorded the statements of the complainant Smt. Mohana, Km. Sohana and of the witnesses of Panchayatnama. The I.O. then inspected the place of occurrence and prepared its sit plan Exhibit Ka-12. Thereafter the I.O. came to know that accused Sadhu had surrendered in the Court of Sri Raj Singh, Judicial Magistrate, Lucknow on 30.5.1981 and was sent to district jail, Lucknow. Sohana and of the witnesses of Panchayatnama. The I.O. then inspected the place of occurrence and prepared its sit plan Exhibit Ka-12. Thereafter the I.O. came to know that accused Sadhu had surrendered in the Court of Sri Raj Singh, Judicial Magistrate, Lucknow on 30.5.1981 and was sent to district jail, Lucknow. He then on 13.6.1981 went to jail and recorded his statement and on 15.7.1981 after concluding the investigation of the case, he submitted charge-sheet Exhibit Ka-13 against accused Sadhu. PW-7 Dr. Ram Niwas was then posted as Medical Officer, Infection Disease Hospital, Lucknow. He conducted the autopsy of the dead body of Smt Kundala on 29.5.1981 at 05:30 p.m., and prepared post-mortem report Exhibit Ka-1, its carbon copy is also on record. The dead body of Smt. Kundala was brought in sealed condition by Umesh Chandra Tewari C.P. No. 2394 PW-6 in the mortuary and he has identified the dead body at the time of post-mortem examination: Physical conditions: Deceased aged about 40 years. Well built body. Both eyes lids half opened. Eye ball opaque and protruded rigor mortise passed off. Abdomen distorted. Post-mortem blisters present. Post-mortem staining on back and buttocks skin peeling of at few places. Greenish discolouration of the abdomen veins at few places are prominent. Hairs could not be pulled out easily from the scalp. Tough prodruding. 4. The following ante-mortem injuries were found on the person of the deceased: (i) Fire-arm injury would oval shape 6 cm. X 4 cm. X chest cavity deep, on left side upper back in posterior axillary line just below and behind the left axilla and 10 cm. below from the top of the left shoulder. Blackening and tattooing present around the wound. Direction from left to right side. (ii) Fire-arm entrance would two in number 2 cm. apart on left upper back outer side situated 2 cm. back to the injury No. 1 Each would in 1 cm. X 3/4 cm. X Muscle deep. No shots found from the would. Direction from left to right side. (iii) Fire-arm entrance would 1 cm. X 3/4 cm. X. muscles deep on left upper and outer chest situated 6 cm. below the injury No. 1. No shot recovered from the wound. Direction from left to right side. (iv) Fire-arm exit would two in number each 1 cm. X 3/4 cm. Direction from left to right side. (iii) Fire-arm entrance would 1 cm. X 3/4 cm. X. muscles deep on left upper and outer chest situated 6 cm. below the injury No. 1. No shot recovered from the wound. Direction from left to right side. (iv) Fire-arm exit would two in number each 1 cm. X 3/4 cm. on right upper chest front and outer side situated 5 cm. below the right axilla, 2 cm. apart from each other. 5. On opening these woulds, communicate with the injury No. 1. The entrance would have 1 cerated and inverted margin abraded colers. Ringh present. The exit woulds have lacerated and inverted margins shots could not be traced out despite of internsive search. Two was taken out from the left lungs sent to Senior Superintendent of Police, Lucknow. 6. The doctor took out two wads Exhibit-2 and Exhibit 3 from the left lungs of the deceased and sealed them in the envelope and sent it to Sr. Superintendent of Police, Lucknow. He also took out the dhoti Exhibit -4 from the dead body of the deceased Smt. Kundala and sealed it and handed over to Constable Umesh Chandra Tewari, PW-6. 7. In the opinion of the doctor the injuries aforesaid were sufficient for the death of the deceased Smt. Kundala and they would have also possibly been caused by gun. He has further opined that the death of Smt. Kundala could have been caused on 26.9.1981 at the time of the setting sun and possibility of its being caused by two fires also could not be ruled out. In cross-examination, the doctor has stated that semi digested food was found in the stomach of the deceased. In reply to the defence question he has stated that he has not mentioned the presence of blackening and tattooing in the injuries No. 2 and 3 and has only mentioned about it in the injury No. 1. According to him since the injuries 2 and 3 were at a distance of 2 cm. from injury No. 1, hence it can safely be presumed about the presence of blackening and tattooing in injuries Nos. 2 and 3 also. He has denied the suggestion given by the learned counsel for the accused that he did not mention the presence of blackening and tattooing in the injuries 2 and 3 because they were not present there at all. 2 and 3 also. He has denied the suggestion given by the learned counsel for the accused that he did not mention the presence of blackening and tattooing in the injuries 2 and 3 because they were not present there at all. The doctor has further stated in his cross-examination that injury No. 1 could have been caused within four feet distance. He has further stated that there could ba a variation of 12 hours either way in the time of death as narrated by him. According to him the food takes 6 hours for its complete digestion, and if a person dies at the time when he was taking food then undigested food would be found. He has further stated that injury No. 5 contustion on the area of 12 cm. X 12 cm. On the left outer chest 22 cm. Above from the hip joining, could be caused by blunt object. He has further stated when asked by the Court that the said injury could be caused even by fall on the hard substance. He has denied the defence question that injury No. 5 could have disappeared within three days. He has further stated that colour of contusion would keeps on changing for one week and then change begins after 6 hours from the time when it is caused. He has denied specific defence suggestion that the injuries aforesaid could have been caused by more than two fire-arm shots. 8. Accused Sadhu was committed to Court of session to stand his trial under Section 302 I.P.C. By Sri S. Chandra, Judicial Magistrate, Lucknow vide his order dated 19.8.1981. 9. The charge under Section 302 I.P.C. For committing the murder of Smt. Kundala @ Shanti by intentionally causing gun shot injuries to her on 26.5.1981 before sun set in village was framed against the accused Sadhu. The charge was read over and explained to the accused who pleased not guilty and claimed to be tried. 10. The prosecution in order to prove its case examined Km. Sohana PW-1, Smt. Mohana PW-2, Sri Virendra Kumar PW-3, Sri Kamla Prasad, H.C. PW-4, Sri Shrawan Singh PW-5, Sri Umesh Chandra Tewari Constable PW-6 and Dr. Ram Niwas PW-7. 11. Out of these prosecution witnesses, PW-1 Km. Sohana and PW-2 Smt. Mohana are the material witnesses whose testimony is the product of their direct sensory perception. Sohana PW-1, Smt. Mohana PW-2, Sri Virendra Kumar PW-3, Sri Kamla Prasad, H.C. PW-4, Sri Shrawan Singh PW-5, Sri Umesh Chandra Tewari Constable PW-6 and Dr. Ram Niwas PW-7. 11. Out of these prosecution witnesses, PW-1 Km. Sohana and PW-2 Smt. Mohana are the material witnesses whose testimony is the product of their direct sensory perception. Both of them have stated about the incident. They have stated about the motive also, of the crime committed by the accused Sadhu. PW-3 Sri Virendra Kumar is Sub-Inspector and was posted at P.S. Malihabad, Lucknow when the incident had taken place. He had accompanied with the I.O. Of the case on the place of incident and there on the instruction of the I.O. He held inquest on the dead body and had prepared inquest report, wrote two letters to the Chief Medical Officer, Lucknow for conducting the post-mortem examination of dead body and also to take in his possession the dhoti worn by the deceased. He has further prepared diagram of the dead body, chalan of dead body, sample seal and memo of ornaments and glass bangles taken in his possession from the dead body of deceased, memo of blood stained earth and plain earth taken from the spot duly sealed by him. Memo pellets and card board and plastic was recovered on the spot. He has proved the said documents and they have been marked Exhibit Ka-2 to Ka-10 respectively. 12. Kamta Prasad, Head Constable wrote the chik FIR Exhibit Ka-1 and registered the case at the police station on its basis in the general diary on report No. 14 at 08:15 a.m. Dated 27.8.1981. He has proved its copy as Exhibit Ka-11. 13. PW-5 Sri Swaran Singh, S.I. is the I.O. of the case. He has stated about the investigation and has proved the site plan Exhibit Ka-12 and charge-sheet as Exhibit Ka-13. 14. PW-6 Umesh Chandra Tewari is the Constable and he was posted Malihabad, Lucknow at the time of incident. He carried the dead body of Smt. Kundala to Mortuary of Medical College, Lucknow for its port-mortem examination and he had identified it before the doctor at the time of post-mortem examination. 15. PW-7 Dr. Ram Niwas has conducted the post-mortem examination of the dead body of Smt. Kundala. He has furnished the medical evidence and has proved the post-mortem examination report Exhibit Ka-14. 16. 15. PW-7 Dr. Ram Niwas has conducted the post-mortem examination of the dead body of Smt. Kundala. He has furnished the medical evidence and has proved the post-mortem examination report Exhibit Ka-14. 16. The accused Sadhu has denied the prosecution case regarding the incident and his participation. He has, however, admitted that he is the uncle of complainant Smt. Mohana. He has pleaded that the husbands of Smt. Mohana and Sohana wanted to take his properties and thus under their influence he has been falsely implicated in the case by the complainant. He has further taken the plea of his alibi. He has stated that on the date of incident he was staying in the outset of his father in law Sri Badloo at Unnao. According to him after the death of the husband of Smt. Kundala all the properties attending in his name were got transferred in the name of deceased Smt. Kundala at the instance of the accused Sadhu and his brother Changa. He has denied to have taken any cash loan of Rs. 3000/- for the purchasing of any pumping set etc. from the deceased Smt. Kundala. He has stated that Rs. 9000/- of the deceased Smt. Kundala was remained in deposit in the Post Office of Rahimabad Lucknow in her name at the time of incident and there was no necessity of any money to the deceased Smt. Kundala. The said money deposited in the Post Office was withdrawn by Avdhesh and Suresh husband of Smt. Mohana and Smt. Sohana from the Post Office after her death. 17. After close of the prosecution case, the statement of the accused was recorded under Section 313 Cr.P.C. in which he denied the occurrence. He has further stated that he has been falsely implicated in this case and in his defence he has produced DW-1 Badlu and DW-2 Kailash Chandra. 18. The learned trial Court after hearing the argument of both the parties and perusing the record convicted the appellant as specified in para 1 of the judgment. 19. Feeling aggrieved, the accused has preferred this present appeal. 20. We have heard Sri Arun Sinha, learned counsel for the appellant, Sri Sharad Dixit, learned A.G.A. and perused the material available on record. 21. During the course of argument the following issued were raised for determination : (1) There is no motive for the present appellant to commit the offence. Feeling aggrieved, the accused has preferred this present appeal. 20. We have heard Sri Arun Sinha, learned counsel for the appellant, Sri Sharad Dixit, learned A.G.A. and perused the material available on record. 21. During the course of argument the following issued were raised for determination : (1) There is no motive for the present appellant to commit the offence. (2) The witnesses produced by the prosecution are interested witnesses, hence, they cannot be relied upon. (3) The appellant Sadhu has been declared juvenile on the date of the incident, hence he has to be dealt with according to the provisions of Juvenile Justice (Care & Protection) Act, 2000. (1) There is no motive for the present appellant to commit the offence : It has been contended on behalf of the appellant that there was no motive for the present appellant to commit the offence and in such a case, where the prosecution has not come up with the motive, the prosecution case stands shattered. Perusal of the First Information Report goes to show that even in the First Information Report which was orally lodged by Mohana who was minor at the time of lodging of the First Information Report. She has categorically stated that after the death of her father, the accused appellant wanted the deceased to transfer all her immovable property to the accused. Besides, it has also been mentioned that the accused had borrowed Rs. 3000/- from the deceased and the deceased was demanding back her money, due to these two reasons, the accused committed the crime. Although in cases of direct evidence, motive looses its value but in the present case, the prosecution has come up with the specific motive for the accused to commit the crime. PW-2 is the complainant and even the eye-witness. She was aged about 12-13 years at the time when her statement been recorded. She categorically stated that her mother did not want to give her husband’s property to the accused appellant, besides, the deceased also asked the accused to return back Rs. 3000/- due to which the accused had threatened the deceased and the eye-witness namely Sohana who was only 8 years at the time of her statement was recorded has stated that the accused has borrowed Rs. 3000/- due to which the accused had threatened the deceased and the eye-witness namely Sohana who was only 8 years at the time of her statement was recorded has stated that the accused has borrowed Rs. 3000/- from her mother which was demanded back by the deceased besides she has also stated that the accused wanted the deceased to transfer his immovable property in his name for which the deceased was not agreeable. Due to these two reasons, the accused appellant murdered her mother. Motive is a double edged weapon which on one side proposes the accused to commit the crime and on the other hand it helps in falsely robing the accused in the case. Each persons reacts differently under given circumstances. Murder can be committed even on very triable issues. A set pattern cannot be laid down as to how and in what manner a person would react and go to what extent to achieve the motive in the commission of the crime under particular circumstances because it is not possible to measure the extent of his feelings, sentiments and reactions as may be, who under frustration or on mere possibility may take the decision to commit the crime. After all, motive is a psychological phenomena to translate the mental deposition of the accused. In the present case, the motive for the accused to kill the deceased has been mentioned in the First Information Report. Per contra Sri Sharad Dixit, learned A.G.A. has submitted that although, there is direct evidence in the case but still since the inception of the First Information Report, the prosecution has come up with the clear case of motive which has been proved, even by both the witnessed. However, proof of motive recedes into the background in cases where the prosecution relies upon eye-witness account of the occurrence. This is because if the Court upon a proper appraisal of the deposition of eye-witnesses case to the conclusion that the version given by them is credible. Conversely, even if the prosecution succeeds in establishing strong motive for the commission of the offence, the evidence of eye-witnesses if found unreliable or unworthy of credit, the existence of motive does not by itself provide the safe basis for convicting the accused. Conversely, even if the prosecution succeeds in establishing strong motive for the commission of the offence, the evidence of eye-witnesses if found unreliable or unworthy of credit, the existence of motive does not by itself provide the safe basis for convicting the accused. That does not given that proof of motive even in a case which rests on an eye-witness account does not lend strength to the prosecution case to fortify the Court in its ultimate conclusion and thus proof of motive in such a situation certainly helps prosecution and supports eye-witnesses. In the present case, the prosecution while mentioning the motive for the offence in the First Information Report has also adduced evidence to the effect. The evidence of PW-1 Sohana and PW-2 Mohana is unblemished, consistent and worthy of credit. Both these child witnesses were given in the hands of the defence for cross-examination and extensive fishing cross-examination was done to discreet their testimony but there is nothing in the cross-examination of these witnesses which would render them to be unreliable witnesses. Thus, there is ample evidence on record to show that the present appellant Sadhu has sufficient motive to commit the offence. (ii) The witnesses produced by the prosecution are interested witnesses, hence they cannot be relied upon In State of U.P. v. Naresh, (2011) 4 SCC 324 , the Hon’ble Apex Court after considering the large number of its earlier judgments held as under : “In all criminal cases, normal discrepancies are bound to occur in the depositions of witnesses due to normal errors of observation, namely, errors of memory due to lapse of time or due to mental disposition such as shock and horror at the time of occurrence. Where the omissions amount to a contradiction, creating a serious doubt about the truthfulness of the witness and other witnesses also make material improvement while deposing in the Court, such evidence cannot be safe to rely upon. However, minor contradictions, inconsistencies, embellishments or improvements on trivial matters which do not affect the core of the prosecution case, should not be made a ground on which the evidence can be rejected in its entirety. The Court has to form its opinion about the credibility of the witness and record a finding as to whether his deposition inspires confidence. Exaggerations per se do not render the evidence brittle. The Court has to form its opinion about the credibility of the witness and record a finding as to whether his deposition inspires confidence. Exaggerations per se do not render the evidence brittle. But it can be one of the factors to test credibility of the prosecution version, when the entire evidence is put in a crucible for being tested on the touchstone of credibility. Therefore, mere marginal variations in the statements of a witness cannot be dubbed as improvements as the same may be elaborations of the statement made by the witness earlier. The omissions which amount to contradictions in material particulars i.e. go to the root of the case/materially affect the trial or core of the prosecution’s case, render the testimony of the witness liable to be discredited.” No doubt, PW-1 Sohana and PW-2 Mohana are real sisters and are real daughters of the deceased but who can be the better witness than the minor daughters, who are expected to be present with their mother at their house, where the sun was about to set. In State of A.P. v. S. Rayappa and others, (2006) 4 SCC 512 , the Hon’ble Apex Court has held as under : “Testimony of a witness otherwise inspiring confidence cannot be discarded on the ground that he being a relation of the deceased is an interested witness. A close relative who is a very natural witness cannot be termed as an interested witness. The term interested postulates that the person concerned must have some direct interest in seeing the accused person being convicted somehow or the other either because of animosity or some other reasons. On the contrary, invariably the public is reluctant to appear and depose before the Court especially in criminal case because of varied reasons. Criminal cases are kept dragging for years to come and the witnesses are a harassed lot. They are being threatened, intimidated and at the top of all they are subjected to lengthy cross-examination. In such a situation, the only natural witness available to the prosecution would be the relative witness. The relative witness is not necessarily an interested witness. On the other hand, being a close relation to the deceased they will try to prosecute the real culprit by stating the truth. In such a situation, the only natural witness available to the prosecution would be the relative witness. The relative witness is not necessarily an interested witness. On the other hand, being a close relation to the deceased they will try to prosecute the real culprit by stating the truth. There is no reason as to why a close relative will implicate and depose falsely against somebody and screen the real culprit to escape unpunished. The only requirement is that the testimony of the relative witnesses should be examined cautiously.” Perusal of the record shows that the testimony of PW-1 Sohana and PW-2 Mohana have been put to a very close cross-examination. Attempt was also made to discreet their testimony as to how the deceased fell down after the incident. But this attempt went in vain. We fail to appreciate how a rustic, uneducated villager can be cross-examined in this manner to discredit his testimony. It would be too much to expect a photogenic explanation of the occurrence because conception of every person is different and Courts are liable to commit mistake by loosing sight of their rural background. It is well-settled that the criminal Court should not expect a set reaction from the eye-witness on seeing an incident like murder and minor contradictions are likely to occur in the statement of truthful witness. The testimony of eye-witness should only be rejected if it is so improbable and so inconceivable from any human being pitted in such a situation. It has to be kept in mind that both the eye-witnesses PW-1 Sohana and PW-2 Mohana are child witnesses. In Panchi v. State of U.P., (1998) 7 SCC 177 , the Hon’ble Apex Court has observed as follows : “The evidence of a child witness cannot be rejected. Outrightly evidence must evaluated carefully and with greater circumspection because a child is susceptible to swayed by what other told him and thus a child witness is an easy prey to tutoring.” In the same context in Dattu Ramrao Sakhare v. State of Maharashtra, 1997 (5) SCC 341 , the Hon’ble Apex Court has held as under : “A child witness, if found competend to depose to the facts can reliable one. Such evidence could be the basis of conviction in other words, even in the absence of oath, the evidence of child witness can be considered under Section 118 of the Evidence Act, provided that such witness is able to understand the answers thereof. The evidence of a child witness and credibility thereof, would depend upon the circumstances of each case. The only precaution which the Court should bear in mind while assessing the evidence of a child witness is that the witness must be a reliable one and his/her demeanour must be like any other competent witness and there is no likelihood of being tutored.” We have critically examined the evidence of PW-1 Sohana and PW-2 Mohana but there is nothing on record to turn the evidence of these witnesses as unworthy of credit. Besides, perusal of the record shows that before the statement of the witness was recorded, the trial Court in its wisdom put certain questions to both the child witnesses and gave specific findings about both the witnesses that they were capable of understanding the sanctity of oath and were capable of giving their statement before the Court. Besides another fact, it is very relevant in this case is that the father of the witnesses PW-1 and PW-2 had already died. The mother of the same witnesses was murdered by the accuses appellant. The informant and her sister had no axe to grind against the accused. There was nothing on behalf of the accused to suggest that any third person had tutored the eye-witnesses, hence the statements of the eye-witnesses PW-1 Sohana and PW-2 Mohana being consistent, trustworthy and in consonance with the medical evidence. We conclude that the prosecution has successfully proved the prosecution case beyond all reasonable doubts. (iii) The appellant Sadhu has been declared juvenile on the date of the incident, hence he has to be dealt with according to the provisions of Juvenile Justice (Care & Protection) Act, 2000 : Learned counsel for the appellant has submitted that the appellant has been declared juvenile by the Juvenile Justice Board, Lucknow. It has further been submitted that since as per report of Juvenile Justice Board, Lucknow, the accused appellant Sadhu was juvenile on the date of the occurrence, hence no useful purpose would be served in sending the accused appellant in jail now. It has further been submitted that since as per report of Juvenile Justice Board, Lucknow, the accused appellant Sadhu was juvenile on the date of the occurrence, hence no useful purpose would be served in sending the accused appellant in jail now. It has further been submitted that presently even as per the statement of the accused recorded under Section 313 Cr.P.C., the accused appellant Sadhu has stated his age to be 19 years in the year 1982. Although, the age as stated by the accused is not conclusive and the Juvenile Justice Board has already declared him to be minor on the date of occurrence, is presently about 53 years of age. He can neither be sent to the children home as presently he is not a minor nor he can be sent to the jail, since at the time of commission of the offence, he was minor. Hence, keeping in view, all the circumstances of the case, the accused appellant Ram Saran be set at liberty. Learned A.G.A. has also not disputed this fact. How the accused has to be dealt with, is now a matter of consideration before this Court. The order that may be passed regarding juvenile has been specified in Section 15 of the Juvenile Justice (Care and Protection of Children) Act, 2000 which reads as under : “15. Learned A.G.A. has also not disputed this fact. How the accused has to be dealt with, is now a matter of consideration before this Court. The order that may be passed regarding juvenile has been specified in Section 15 of the Juvenile Justice (Care and Protection of Children) Act, 2000 which reads as under : “15. Order that may be passed regarding juvenile—(1) Where a Board is satisfied on inquiry that a juvenile has committed an offence, then, notwithstanding anything to the contrary contained in any other law for the time being in force, the Board may, if it so thinks fit,- (a) allow the juvenile to go home after advice or admonition following appropriate inquiry against and counselling to the parent or the guardian and the juvenile; (b) direct the juvenile to participate in group counselling and similar activities; (c) order the juvenile to perform community service; (d) order the parent of the juvenile or the juvenile himself to pay a fine, if he is over fourteen years of age and earns money; (e) direct the juvenile to be released on probation of good conduct and placed under the care of any parent, guardian or other fit person, on such parent, guardian or other fit person executing a bond, with or without surety, as the Board may require, for the good behaviour and well-being of the juvenile for any period not exceeding three years; (f) direct the juvenile to be released on probation of good conduct and placed under the care of any fit institution for the good behaviour and well-being of the juvenile for any period not exceeding three years; 1[(g) make an order directing the juvenile to be sent to a special home for a period of three years: Provided that the Board may, if it is satisfied that having regard to the nature of the offence and the circumstances of the case, it is expedient so to do, for reasons to be recorded, reduce the period of stay to such period as it thinks fit.] (2) The Board shall obtain the social investigation report on juvenile either through a probation officer or a recognised voluntary organisation or otherwise, and shall take into consideration the findings of such report before passing an order. (3) Where an order under clause (d), clause (e) or clause (f) of sub-section (1) is made, the Board may, if it is of opinion that in the interests of the juvenile and of the public, it is expedient so to do, in addition make an order that the juvenile in conflict with law shall remain under the supervision of a probation officer named in the order during such period, not exceeding three years as may be specified therein, and may in such supervision order impose such conditions as it deems necessary for the due supervision of the juvenile in conflict with law: Provided that if at any time afterwards it appears to the Board on receiving a report from the probation officer or otherwise, that the juvenile in conflict with law has not been of good behaviour during the period of supervision or that the fit institution under whose care the juvenile was placed is no longer able or willing to ensure the good behaviour and well-being of the juvenile it may, after making such inquiry as it deems fit, order the juvenile in conflict with law to be sent to a special home. (4) The Board shall while making a supervision order under sub-section (3), explain to the juvenile and the parent, guardian or other fit person or fit institution, as the case may be, under whose care the juvenile has been placed, the terms and conditions of the order and shall forthwith furnish one copy of the supervision order to the juvenile, the parent, guardian or other fit person or fit institution, as the case may be, the sureties, if any, and the Probation officer.” Section 16 of the Juvenile Justice (Care and Protection of Children) Act, 2000 reads as under : “(1) Notwithstanding anything to the contrary contained in any other law for the time being in force, no juvenile in conflict with law shall be sentenced to death 1[or imprisonment for any term which may extend to imprisonment for life], or committed to prison in default of payment of fine or in default of furnishing security.” Section 15 of the Juvenile Justice (Care and Protection of Children) Act, 2000 restricts the period of detention of a juvenile for not exceeding three years. Counsel for the appellants has placed reliance upon Isatish alias Dhanna v. State of Madhya Pradesh and others, (2009) 14 SCC 187 , in which it has been laid down that the benefit of the act should be extended to the accused appellant who was a minor on the date of occurrence. It has further been held that at this distant point of time to refer the appellant to the Juvenile Justice Board would not be proper and in the aforesaid case the appellant was ordered to be released. Thus, there is no doubt that the appellant cannot be compelled to undergo detention otherwise then provided under Section 15 of the Juvenile Justice (Care and Protection of Children) Act, 2000. Hon’ble Apex Court in Criminal Appeal No. 210 of 2005 (Pratap Singh v. State of Jharkhand and another), a judgment delivered on 2.2.2005 by the Bench of five Hon’ble Judges in which it has been held as under : “26. 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 Juvenile Court 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 the juvenile has committed the offence.” Section 20 of the Juvenile Justice (Care and Protection of Children) Act, 2000 reads as under : “20. 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. 1[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.” Section 64 of the Juvenile Justice (Care and Protection of Children) Act, 2000 provides that where a juvenile is undergoing a sentence of imprisonment at the commencement of this Act, shall, in lieu of undergoing such sentence, be sent to a special home or be kept in fit institution. Thus, provision show that even in cases where a mere inquiry is commenced or even where a juvenile has been sentenced a provision of 2000 Act would apply. Therefore, Section 20 of the Act 2000 is to be appreciated in the context of the aforesaid provisions. Section 20 of the Act as quoted above deals with the special provision in respect of pending cases and begins with non-obstante clause. The sentence “Notwithstanding anything contained in this Act, all proceedings in respect of a juvenile pending in any Court in any area on date of which this Act came into force” has great significance. The proceedings in respect of a juvenile pending in any Court referred to in Section 20 of the Act is relatable to proceedings initiated before the 2000 Act came into force and which are pending when the 2000 Act came into force. The term “any Court” would include even ordinary criminal Courts. If the person was a “juvenile” under the 1986 Act the proceedings would not be pending in criminal Courts. They would be pending in criminal Courts only if the boy had crossed 16 years or girl had crossed 18 years. The term “any Court” would include even ordinary criminal Courts. If the person was a “juvenile” under the 1986 Act the proceedings would not be pending in criminal Courts. They would be pending in criminal Courts only if the boy had crossed 16 years or girl had crossed 18 years. This shows that Section 20 refers to cases where a person had ceased to be a juvenile under the 1986 Act but had not yet crossed the age of 18 years then the pending case shall continue in that Court as if the 2000 Act has 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, shall forward the juvenile to the Board which shall pass orders in respect of that juvenile. Thus, we conclude that although conviction of the appellant has been confirmed but as regards sentence is concerned, he should be dealt with under the provisions of Juvenile Justice (Care and Protection of Children) Act, 2000 In Salil Bali v. Union of India and another, (2013) 7 SCC 705 , the Hon’ble Apex Court has specified its concern about punishment as regards juvenile is concerned. It has been mentioned in the aforesaid judgment as under : “One misunderstanding of the law relating to the sentencing of the juveniles, needs to be corrected. The general understanding of a sentence that can be awarded to a juvenile under Section 15(1)(g) of the Juvenile Justice (Care and Protection of Children) Act, 2000, prior to its amendment in 2006, is that after attaining the age of eighteen years, a juvenile who is found guilty of the heinous offence is allowed to go free. Section 15(1)(g), as it stood before the amendment came into effect from 22.8.2006, reads as follows: “15. Section 15(1)(g), as it stood before the amendment came into effect from 22.8.2006, reads as follows: “15. (1)(g) make as order directing the juvenile to be sent to a special home for a period of three years: in the case of juvenile, over seventeen years but less than eighteen years of age for a period of not less than two years; in case of any other juvenile for the period until he ceases to be a juvenile: Provided that the Board may, if it is satisfied that having regard to the nature of the offence and the circumstances of the case it is expedient so to do, for reason to be recorded, reduce the period of stay to such period as it thinks fit.” It was generally perceived that a juvenile was free to go, even if he had committed a heinous crime, when he ceased to be a juvenile. The said understanding needs to be clarified on account of the amendment which came into force with effect from 22.8.2006, as a result whereof Section 15(1)(g) now reads as follows: “15. (1)(g) make an order directing the juvenile to be sent to a special home for a period of three years: Provided that the Board may, if it is satisfied that having regard to the nature of the offence and the circumstances of the case, it is expedient so to do, for reasons to be recorded, reduce the period of stay to such period as it thinks fit.” The aforesaid amendment now makes it clear that even if a juvenile attains the age of eighteen years within a period of one year he would still have to undergo a sentence of three years, which could spill beyond the period of one year when he attained majority.” We have been informed by the learned A.G.A. That there is no special home for detaining a juvenile in conflict with law after he becomes major. We did not loose sight of the fact that the essence of Juvenile Justice (Care and Protection of Children) Act, 2000 is restorative and not retributive, providing for rehabilitation and reintegration of children in conflict with law into mainstream society, instead of becoming hardened criminal in future. We did not loose sight of the fact that the essence of Juvenile Justice (Care and Protection of Children) Act, 2000 is restorative and not retributive, providing for rehabilitation and reintegration of children in conflict with law into mainstream society, instead of becoming hardened criminal in future. Thus by reason of legal friction, a person, although not a juvenile has to be treated to be one by the Board for the purpose of sentencing, which takes care of a situation that the person although not a juvenile but still would be treated as such under Juvenile Justice (Care and Protection of Children) Act, 2000 for the said limited purpose. From a plain reading the explanation of Section 20 is that unless pending cases, which would include not only trial but even subsequent proceeding by way of revision or appeal etc, the determination of juvenility of a juvenile has to be in terms of Clause (l) of Section 2 of the Act. “11. It is plain from the language of the Explanation to Section 20 that in all pending cases, which would include not only trials but even subsequent proceedings by way of revision or appeal, etc., the determination of juvenility of a juvenile has to be in terms of Clause (l) of Section 2, even if the juvenile ceases to be a juvenile on or before 1st April, 2001, when the Act of 2000 came into force, and the provisions of the Act would apply as if the said provision had been in force for all purposes and for all material times when the alleged offence was committed. Clause (l) of Section 2 of the Act of 2000 provides 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. Clause (l) of Section 2 of the Act of 2000 provides 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. Section 20 also enables the Court to consider and determine the juvenility of a person even after conviction by the regular Court and also empowers the Court, while maintaining the conviction, to set aside the sentence imposed and forward the case to the Juvenile Justice Board concerned for passing sentence in accordance with the provisions of the Act of 2000.” A question crops up as to how the juvenile in conflict with law who was a juvenile at the time of occurrence but who has subsequently attained the majority and is about 53 years of age shall be dealt with. As informed by learned A.G.A., there is no special home for such people who are convicted but have ceased to be a juvenile. Perusal of the Juvenile Justice (Care and Protection of Children) Act, 2000 under Section 15(1)(g) the board may if it thinks fit, make an order directing the juvenile be sent to a special home for a period of three years although according to the provisions, the period of stay can also be reduced. Besides other orders which can be passed under Section 15 by the Board. But according to Section 16, the period of detention so ordered shall not exceed in any case three years. However, provision of Section 20 of the Juvenile Justice (Care and Protection of Children) Act, 2000 empowers the Board 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. 22. The law as it stands today is that the juvenile Justice Board cannot send a juvenile as he was at the time of occurrence who has subsequently attained majority to the special home nor the Board is empowered to send a person who was juvenile at the time of occurrence to jail. The question arises as to where such a person has to be sent. 23. The act has empowered the State Government to make rules under this act for the management of children. 24. Section 37 enables the State Government to recognize, reputed and capable voluntary organization as shelter home. 25. The question arises as to where such a person has to be sent. 23. The act has empowered the State Government to make rules under this act for the management of children. 24. Section 37 enables the State Government to recognize, reputed and capable voluntary organization as shelter home. 25. Thus, the State Government to consider to make specific rules as to where such juveniles who have attained majority should be kept in case their conviction is upheld. 26. We inquired from learned A.G.A., whether there were any such shelter homes, where the accused could be kept, but learned A.G.A. could not pointout any such shelter home. In Criminal Appeal No. 529 of 1982 (Shiv Govind @ Surat and others v. State), the another Bench of this Court had observed in para 22 that the State Government shouls consider to make specific rules as to where such juveniles who have subsequently attend majority should be kept, in cases their conviction upheld but it appears that nothing was done in the matter. 27. Thus, we conclude that conviction qua the appellant Sadhu is well founded and needs no interference. 28. The conviction of the accused Sadhu is sustained, however, the punishment of life sentence imposed on him is quashed since on the date when the offence was committed, the accused appellant Sadhu was a juvenile in conflict with law, thus, he is entitled to the benefit of Juvenile Justice (Care and Protection of Children) Act, 2000. 29. In the aforesaid terms, the appeal is partly allowed. 30. The conviction of Sadhu is upheld but sentence awarded by the Court below is accordingly set aside. 31. Let the case record be placed before the concerned Juvenile Justice Board for awarding appropriate sentence.