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2023 DIGILAW 415 (ALL)

Gulab Singh v. State of U. P.

2023-02-10

MANISH KUMAR NIGAM, SIDDHARTHA VARMA

body2023
JUDGMENT : Manish Kumar Nigam, J. Ref: Criminal Misc. Application No. 1 of 2019 1. Heard learned counsel for the appellants, learned A.G.A. for the State. 2. This appeal was filed by appellants Gulab Singh (A1), Shiv Narain Singh (A2), Munnu Singh (A3), Nanka (A4), Basdeo (A5), Chhotku (A6), Girish (A7), Kishore (A8), Jhoori Singh alias Chandra Bhushan Singh (A9) and Kalloo @ Avadesh (A10) against the judgment and order dated 05.04.1983 passed by IIIrd Additional Sessions Judge, Fatehpur in S.T. No. 119 of 1982 (Gulab Singh & others Vs. State of U.P.), by which the appellants had been convicted and sentenced to life imprisonment under Section 302 read with 149 I.P.C., seven years rigorous imprisonment under Section 307/149 I.P.C. Jhoori Singh alias Chandra Bhushan Singh (A9) and Kalloo @ Avadesh (A10) were further convicted and sentenced to two years rigorous imprisonment under Section 148 I.P.C. Shiv Narain Singh (A2), Munnu Singh (A3), Nanka (A4), Basdeo (A5), Chhotku (A6), Girish (A7) and Kishore (A8) were also convicted and sentenced to one year rigorous imprisonment u/s 147 I.P.C. 3. Briefly stated the facts of the case are that on the basis of a written report (Ex. Ka-1), F.I.R. lodged by PW-1 informant Brij Bhushan at Police Station Ghazipur, District Fatehpur on 05.12.1981 at about 9:30 A.M. regarding an incident which had taken place on 05.12.1981 at about 8:15 A.M., Case Crime No. 941 of 1981, under Section 147, 149, 302 & 307 I.P.C. against the appellants as well as co-accused Raghubir and Babu Singh Yadav was initiated. In the aforesaid incident, Chandra Bhushan and Ban Bihari died and Ram Kripal, Kunj Bihari and Brij Bhushan had received injuries. 4. After investigation, the police submitted a charge sheet against all the accused persons before the Chief Judicial Magistrate, Fatehpur. 5. In the aforesaid incident, Chandra Bhushan and Ban Bihari died and Ram Kripal, Kunj Bihari and Brij Bhushan had received injuries. 4. After investigation, the police submitted a charge sheet against all the accused persons before the Chief Judicial Magistrate, Fatehpur. 5. Since, the offences mentioned in the charge sheet were triable exclusively by the court of Sessions, the Chief Judicial Magistrate committed the case of all the accused to the court of Sessions Judge, Fatehupur where the case was registered as S.T. No. 119 of 1982 (Gulab Singh and others v. State of U.P.), thereafter the case was transferred to the court of IIIrd Additional Sessions Judge, Fatehpur, who on the basis of material collected in the investigation and after hearing the prosecution as well as the accused on the point of charge, framed charges under Section 302/149 and 307/149 against all the appellants. 6. Apart from the aforesaid charges, a charge under Section 148 I.P.C. was framed against Jhoori Singh @ Chandra Bhushan (A9) and Kallu @ Avdhesh (A10). Charge under Section 147 I.P.C. was framed against Sri Narayan Singh (A2), Munnu Singh (A3), Nanka (A4), Basudev (A5), Chhotuku (A6), Girish (A7) and Kishore (a-8). The accused appellants denied the charges framed against them and claimed trial. 7. The trial court after considering the evidence brought on record by the prosecution and also the material brought on record convicted and sentenced all the appellants to life imprisonment under Section 302 read with Section 149 I.P.C. Also a punishment of 7 years rigorous imprisonment under Section 307/149 I.P.C. was awarded. Jhoori Singh (A9), Kallu @ Avdhesh (A10), were further convicted and sentenced to 2 years rigorous imprisonment under Section 148 I.P.C. Shiv Narayan Singh (A2), Munnu (A3), Nanka (A4), Basudev (A5), Chhotku (A6), Girish (A7) and Kishore (A8) were convicted for a year of rigorous imprisonment under Section 147 I.P.C. 9. The present appeal was filed against the judgment and order dated 05.04.1983 passed by Additional Sessions Judge. It is to be noted that all the accused persons were on bail during trial. 10. After filing of the appeal, the appellants were granted bail by this Court by order dated 06.04.1983. 11. The present appeal was filed against the judgment and order dated 05.04.1983 passed by Additional Sessions Judge. It is to be noted that all the accused persons were on bail during trial. 10. After filing of the appeal, the appellants were granted bail by this Court by order dated 06.04.1983. 11. This Court after hearing the counsel for the appellants as well as learned A.G.A. for the State vide its judgment and order dated 16.08.2018 confirmed the judgment of the trial court with regard to Gulab Singh (A1) and Kallu @ Avdhesh (A10). The appeal of Shiv Naryan (A2), (A3), (A4), (A5), (A6) and (A7) was allowed and they were acquitted of all the charges framed against them by this Court. The appeal was allowed in part and dismissed qua Gulab Singh (A1). 12. By an order dated 23.01.2020 earlier order dated 16.08.2018 was corrected and name of Kallu @ Avdhesh (A10) was added in the first line of third last paragraph of the order dated 16.08.2018 and following paragraph was added before second last paragraph of the judgment: “The appellant Kallu @ Avadesh (A10) is on bail. His bail bonds are cancelled and sureties discharged. Chief Judicial Magistrate, Fatehpur, is directed to take him in custody and send him to jail for serving out the remaining part of his sentence.” 13. After the judgment and order dated 16.08.2018, Criminal Misc. Application No. 1 of 2019 dated 06.12.2019 was filed on behalf of Kallu @ Avdhesh (A10) with a prayer that the appellant no. 10 Kallu @ Avdhesh be declared juvenile and the order of sentence against Kallu @ Avdhesh be set-aside. 14. Judgment and order dated 16.08.2018 passed in this appeal was challenged before the Hon’ble Supreme Court in Special Leave to Appeal (Cri) No. 3506-3507 of 2020 (Kallu @ Avdhesh v. State of U.P.). Vide its order dated 31.07.2022, the Hon’ble Supreme Court declined to interfere with the order of conviction. However, it issued a direction, directing the High Court to consider and pass orders on the application of the Kallu @ Avdhesh (A-10) claiming to be juvenile on the date of incident. 15. After the order of Hon’ble Supreme Court dated 21.08.2020, Criminal Misc. Application No. 1 of 2019 dated 06.12.2019 under Section 9(2) of Juvenile Justice (Care and Protection) of Children Act, 2015 (hereinafter referred to as the “Act of 2015”) on behalf of appellant no. 15. After the order of Hon’ble Supreme Court dated 21.08.2020, Criminal Misc. Application No. 1 of 2019 dated 06.12.2019 under Section 9(2) of Juvenile Justice (Care and Protection) of Children Act, 2015 (hereinafter referred to as the “Act of 2015”) on behalf of appellant no. 10 Kallu @ Avdhesh was placed before this Court. 16. By the order dated 27.09.2021, the question of determining the juvenility of appellant no. 10 Kallu @ Avdhesh was referred to the Juvenile Justice Board, Fatehpur (hereinafter referred to as “The Board”) to consider and dispose of the matter in accordance with law within two months from the date of presentation of certified copy of the order dated 27.09.2021. 17. In compliance of the order dated 27.09.2021, the Board vide its order dated 06.01.2022, by a 2:1 decision, held that the appellant no. 10 Kallu @ Avdhesh was a juvenile on the date of the incident i.e. on 05.12.1981. 18. After the order dated 06.01.2022 was passed by the Board, the same was placed on record of this appeal. A Counter affidavit dated 02.03.2022 was filed by the State wherein it has been claimed on the basis of a certificate issued by Principal of the Uccha Prathmik Vidyalaya Gamhari, Bahua, Fatehpur and on the date of birth certificate issued by Principal of Jagat Inter College, Ghazipur, Fatehpur that the date of birth of appellant no. 10 Kallu @ Avdhesh is 05.03.1962 and that the appellant no. 10 was not a juvenile on the date of the incident. 19. A rejoinder affidavit has been filed thereafter on behalf of appellant no. 10 Kallu @ Avdhesh wherein it has been specifically stated that the appellant no. 10 Kallu @ Avdhesh is an illiterate person and had never gone to any school. It has been further stated in the rejoinder affidavit that no such evidence was filed on behalf of State when the proceedings were going on before the Board. It has been further stated in the rejoinder affidavit that neither the State nor the informant had filed any appeal against the order dated 06.01.2022 passed by the Board, meaning thereby that these issues could not be raised now at this stage. 20. Today when the matter was taken up, Application No. 1 of 2019 was pressed by the counsel for the appellant. 20. Today when the matter was taken up, Application No. 1 of 2019 was pressed by the counsel for the appellant. It has been contended by the learned counsel for the appellant that in pursuance to the order passed by this Court, the Board had undertaken the exercise to determine the age of the appellant no. 10 Kallu @ Avdhesh. On enquiry it had been held by the Board by a majority of 2:1 that at the time of incident, appellant no. 10 Kallu @ Avdhesh was a minor. It has been further contended by the learned counsel for the appellant that the order dated 06.01.2022 passed by the Board became final as no appeal was preferred either by the informant or by the State against the order of the Board. 21. Counsel for the appellant submitted that as the appellant no. 10 has been held to be a juvenile on the date of incident, then in view of the provisions of Act of 2015, appellant no. 10 is to be released forthwith as he had remained in jail for more than 3 years and even otherwise at present, the appellant no. 10 was aged about 57 years and therefore, cannot be sent to a juvenile home. 22. Per contra, relying upon the counter affidavit filed by the State, learned A.G.A. stated that as per the certificates annexed along with counter affidavit, the appellant no. 10, was not a juvenile at the time of incident and the report of the Board was incorrect. It has been further contended that the inquiry made by the Board was not in accordance with law and the appellant no. 10 cannot be given the benefit of the provisions of the Act of 2015. It has been further contended by the learned A.G.A. that the Board erroneously relied upon the entries made in the family register. It has been further contended that there were interpolation in the entries made in the family register. 23. In reply to the argument of learned A.G.A., learned counsel for the appellant submitted that certificate annexed along with counter affidavit cannot be relied upon. Firstly as only the photo copies of the certificates had been filed along with the counter affidavit and secondly, the aforesaid certificates were never filed by the State before the Board when the Board was enquiring into the matter of Juvenility of the appellant no. 10. Firstly as only the photo copies of the certificates had been filed along with the counter affidavit and secondly, the aforesaid certificates were never filed by the State before the Board when the Board was enquiring into the matter of Juvenility of the appellant no. 10. 24. It has been further contended that against the order of the Board, no appeal had been preferred by the State or informant and the order passed by the Board became final. The inquiry conducted by the Board was in accordance with law and cannot be faulted. 25. After consider the respective submissions made by the learned counsel for the appellant and perusal of the record, we are of the view that the contention of the learned A.G.A. for the State that entries made in the family register cannot be relied upon, is not correct. “Family Register 26. The Family Register Rules prescribes preparation of a Family Register in the State of Uttar Pradesh which contains family-wise names and particulars of all persons ordinarily residing in the village pertaining to the Gaon Sabha. Such Rules have been framed under Section 110 of the U.P. Panchayat Raj Act, 1947. Such Rules read as under: "1. (1) These Rules may be called the U.P. Panchayat Raj (Maintenance of Family Registers) Rules, 1970. 2. Form and preparation of family register.—A family register in form A shall be prepared containing family-wise the names and particulars of all persons ordinarily residing in the village pertaining to the Gaon Sabha. Ordinarily one page shall be allotted to each family in the register. There shall be a separate section in the register for families belonging to the Scheduled Castes. The register shall be prepared in Hindi in Devanagri script. 3. General conditions for registration in the register.— Every person who has been ordinarily resident within the area of the Gaon Sabha shall be entitled to be registered in the family register. Explanation.—A person shall be deemed to be ordinarily resident in a village if he has been ordinarily residing in such village or is in possession of a dwelling house therein ready for occupation. 4. Quarterly entries in the family register.—At the beginning of each quarter commencing from April in each year, the Secretary of a Gaon Sabha shall make necessary changes in the family register consequent upon births and deaths, if any occurring in the previous quarter in each family. 4. Quarterly entries in the family register.—At the beginning of each quarter commencing from April in each year, the Secretary of a Gaon Sabha shall make necessary changes in the family register consequent upon births and deaths, if any occurring in the previous quarter in each family. Such changes shall be laid before the next meeting of the Gaon Panchayat for information. 5. Correction of any existing entry.—The Assistant Development Officer (Panchayat) may on an application made to him in this behalf order the correction of any existing entry in the family register and the Secretary of the Gaon Sabha shall then correct the Register accordingly. 6. Inclusion of names in the Register.—(1) Any person whose name is not included in the family register may apply to the Assistant Development Officer (Panchayat) for the inclusion of his name therein. (2) The Assistant Development Officer (Panchayat) shall, if satisfied, after such enquiry as he thinks fit that the applicant is entitled to be registered in the Register, direct that the name of the applicant be included therein and the Secretary of the Gaon Sabha shall include the name accordingly. 6-A. Any person aggrieved by an order made under Rule 5 or Rule 6 may, within 30 days from the date of such order prefer and appeal to the Sub-Divisional Officer whose decision shall be final. 7. Custody and preservation of the register.—(1) The Secretary of the Gaon Sabha shall be responsible for the safe custody of the family register. (2) Every person shall have a right to inspect the Register and to get attested copy of any entry or extract therefrom in such manner and on payment of such fees, if any, as may be specified in Rule 73 of the U.P. Panchayat Raj Rules. FORM A (See Rule 2) *** Note.—In the remarks column the number and date of the order, if any, by which any name is added or struck off should be given along with the signature of the person making the entry." 27. A perusal of the above Rules indicate that one page is allotted to each family and that any change in the family consequent upon the births and deaths is required to be incorporated on such page. The changes are also required to be laid before the next meeting of the Gram Panchayat. A perusal of the above Rules indicate that one page is allotted to each family and that any change in the family consequent upon the births and deaths is required to be incorporated on such page. The changes are also required to be laid before the next meeting of the Gram Panchayat. Thus, it is evident that such Rules are statutorily framed in pursuance of an Act. The entries in the register are required to be made by the officials of the Gram Panchayat as part of their official duty. 28. This Court in the case of Manoj v. State of Haryana, reported in (2022) 6 SCC 187 , observed in regard to the Family Register referred to above as under”- "39. We are unable to approve the broad view taken by the High Court in some of the cases that family register is not relevant to determine age of the family members. It is a question of fact as to how much evidentiary value is to be attached to the family register, but to say that it is entirely not relevant would not be the correct enunciation of law. The register is being maintained in accordance with the rules framed under a statute. The entries made in the regular course of the affairs of the Panchayat would thus be relevant but the extent of such reliance would be in view of the peculiar facts and circumstances of each case." (Emphasis supplied) “23. The procedure to be followed for the determination of age is provided under Rule 12(3)(b) of Juvenile Justice (Care and Protection of Children) Rules, 2007 (for short 2007 Rules). “12. The procedure to be followed for the determination of age is provided under Rule 12(3)(b) of Juvenile Justice (Care and Protection of Children) Rules, 2007 (for short 2007 Rules). “12. Procedure to be followed in determination of age.—(3) In every case concerning a child or juvenile in conflict with law, the age determination inquiry shall be conducted by the court or the Board or, as the case may be, the Committee by seeking evidence by obtaining— (a)(i) the matriculation or equivalent certificates, if available; and in the absence whereof; (ii) the date of birth certificate from the school (other than a play school) first attended; and in the absence whereof; (iii) the birth certificate given by a corporation or a municipal authority or a panchayat; (b) and only in the absence of either (i), (ii) or (iii) of clause (a) above, the medical opinion will be sought from a duly constituted Medical Board, which will declare the age of the juvenile or child. In case exact assessment of the age cannot be done, the Court or the Board or, as the case may be, the Committee, for the reasons to be recorded by them, may, if considered necessary, give benefit to the child or juvenile by considering his/her age on lower side within the margin of one year. and, while passing orders in such case shall, after taking into consideration such evidence as may be available, or the medical opinion, as the case may be, record a finding in respect of his age and either of the evidence specified in any of the clauses (a) (i), (ii), (iii) or in the absence whereof, clause (b) shall be the conclusive proof of the age as regards such child or the juvenile in conflict with law.” 29. The Act of 2000 stands repealed by the Act of 2015. The procedure for determining the age is now part of Section 94 of the Act of 2015 which was earlier provided under the abovementioned Rule 12 of the Rules. 30. Section 94 (2) of Juvenile Justice (Care and Protection of Children ) Act, 2015 is quoted as under :- 94. The procedure for determining the age is now part of Section 94 of the Act of 2015 which was earlier provided under the abovementioned Rule 12 of the Rules. 30. Section 94 (2) of Juvenile Justice (Care and Protection of Children ) Act, 2015 is quoted as under :- 94. Presumption and determination of age -(1) Where, it is obvious to the Committee or the Board, based on the appearance of the person brought before it under any of the provisions of this Act (other than for the purpose of giving evidence) that the said person is a child, the Committee or the Board shall record such observation stating the age of the child as nearly as may be and proceed with the inquiry under section 14 or section 36, as the case may be, without waiting for further confirmation of the age. (2) In case, the Committee or the Board has reasonable grounds for doubt regarding whether the person brought before it is a child or not, the Committee or the Board, as the case may be, shall undertake the process of age determination, by seeking evidence by obtaining – (i) the date of birth certificate from the school, or the matriculation or equivalent certificate from the concerned examination Board, if available; and in the absence thereof; (ii) the birth certificate given by a corporation or a municipal authority or a panchayat; (iii) and only in the absence of (i) and (ii) above, age shall be determined by an ossification test or any other latest medical age determination test conducted on the orders of the Committee or the Board: Provided such age determination test conducted on the order of the Committee or the Board shall be completed within fifteen days from the date of such order. (3) The age recorded by the Committee or the Board to be the age of person so brought before it shall, for the purpose of this Act, be deemed to be the true age of that person.” 31. We have perused the report of the Board. The Board has recorded a finding that cuttings made in the family register have been signed by the Competent Authority. It has been further held by the Board that the date of birth of the appellant no. We have perused the report of the Board. The Board has recorded a finding that cuttings made in the family register have been signed by the Competent Authority. It has been further held by the Board that the date of birth of the appellant no. 10 has been changed from 28.05.1965 to 03.06.1965 and there is only a difference of five days from which it is clear that no benefit is given to the appellant no. 10. The relevant extract of the report of Board is quoted as under: 32. Section 35 of the Indian Evidence Act in this regard is relevant and the same is reproduced below: “35. Relevancy of entry in public record made in performance of duty: An entry in any public or other official book, register or [record or an electronic record], stating a fact in in issue or relevant fact, and made by a public servant in the discharge of his official duty, or by any other person in performance of a duty specially enjoined by the law of the country in which such book, register, or [record or an electronic record] is kept, is person in performance of a duty specially enjoined by the law of the country in which such book, register, or [record or an electronic record] is kept, is itself a relevant fact” 33. The family register prepared in discharge of official duty and therefore, in absence of any evidence, to contrary the same would be a relevant evidence. 34. So far as the certificates filed along with counter affidavit are concerned, they do not inspire confidence as the documents are certificates issued by the Principal of some Institution. We find that the Appellant no. 10 had never attended any school. Further aforesaid documents were not filed by the State or informant before the Board when the enquiry was being conducted by the Board as to the juvenility of the Appellant no. 10. The State or the informant has also not challenged the order passed by the Board declaring the Appellant no. 10 to be a juvenile and the said order has attained finality. 35. 10. The State or the informant has also not challenged the order passed by the Board declaring the Appellant no. 10 to be a juvenile and the said order has attained finality. 35. We have already held in case of Ram Nayan and four others v. State of U.P. passed in Criminal Appeal No. 4499 of 2015 decided on 12.04.2023 that there is no substantial difference in the provisions of the Juvenile Justice (Care and Protection of Children) Act 2005 (hereinafter referred to as “Act of 2005”) and the provisions of the Juvenile Justice (Care and Protection of Children) Act, 2000 (hereinafter referred as “Act of 2000”) except that the Act of 2015 take cares of crime committed by a children in the age group of 16-18 years. Under Rule 12(3)(b) of 2007 Rules, the determination of age by the Board shall be conclusive proof of the age as regards a child or a juvenile in conflict with law. Similarly under Section 94(2) of Act of 2015, age recorded by the committee or the Board to be the age of a person so brought before it, for the purpose of Act of 2015 would be deemed to be the true age of that person. 36. Considering the report of the Board we are of the opinion that categorical finding recorded by the competent juvenile justice Board, which is based on cogent evidence that the appellant no. 10 was a juvenile at the time of commission of the offence i.e. 05.12.1982. 37. In the present case, as is evident from the record and submissions made by the learned counsel appearing for the respective parties, the Appellant no. 10 has already undergone about three years imprisonment. As we have already held that the appellant no. 10 was juvenile in conflict with law at the time of occurrence i.e. 05.12.1981, the appellant no. 10 is entitled to the benefit of the Act of 2015. 38. In view of the Section 18(1)(g) of 2015 Act, the most stringent action which could have been taken against applicant/appellant no. 10, was of sending the applicant to a special home for a period of three years. As the appellant has undergone the sentence for more than three years, therefore now it will be unjust to send the applicant to Juvenile Justice Board. 39. Therefore, we allow the application and direct that applicant/appellant no. 10, was of sending the applicant to a special home for a period of three years. As the appellant has undergone the sentence for more than three years, therefore now it will be unjust to send the applicant to Juvenile Justice Board. 39. Therefore, we allow the application and direct that applicant/appellant no. 10 Kallo alias Avdesh, convicted and sentence in S.T. No. 119 of 1982 (Gulab Singh and others v. State of U.P.) decided by IIIrd Additional Sessions Judge, Fatehpur shall be forthwith set at liberty provided he is not required to be detained under any other order of competent court. 40. In view of sub Section (1) of Section 24 of the Act of 2015, the applicant/appellant no. 10 Kallo alias Avdhesh Shall not incur any disqualification because of his conviction and period of sentence undergone by him. 41. The miscellaneous application is allowed in the above term.