Pappu vs State Of U.P.
2017 Latest Caselaw 2744 ALL

HIGH COURT OF JUDICATURE AT ALLAHABAD, LUCKNOW BENCH
 
 


 
A.F.R.
 

 
Reserved on 07.07.2017
 
Delivered on 28.07.2017
 
Court No. - 25
 

 
Case :- CRIMINAL APPEAL No. - 526 of 1993
 

 
Appellant :- Pappu
 
Respondent :- State Of U.P.
 
Counsel for Appellant :- Arun Sinha,S.P. Pandey
 
Counsel for Respondent :- Govt. Advocate
 

 

 
Hon'ble Ravindra Nath Mishra-II,J.

1. This appeal has been preferred against judgment of conviction and sentence rendered by First Additional Sessions Judge, District Barabanki on 04.12.1993 in Sessions Trial No. 412/89 (State Versus Pappu @ Pramod Kumar) arising out of Case Crime No. 167/87 under Section 304 Part-II Indian Penal Code, whereby the appellant-accused has been convicted and sentences to rigorous imprisonment of five years.

2. Abridged facts as revealed from the First Information Report, are that a report was lodged by brother of victim on 29.08.1987 at about 4.45 a.m. that his brother deceased Sunder Lal had illicit relations with Smt. Phoolmati, mother of appellant-accused. Appellant-accused Pappu @ Pramod Kumar being son of Smt. Phoolmati was not happy with the relationship and took her relationship against prestige and honour of his family. On the day of occurrence at about 5.45 a.m. when victim Sunder Lal was going to ease himself, appellant-accused Pappu @ Pramod Kumar, who had a "banka" in his hand came from Northern side and made assault on victim Sunder Lal near the crossing, whereupon victim fell down on the road. Appellant-accused Pappu @ Pramod Kumar gave blow on the head of the victim. The complainant, who was also coming from his house and one Lal Ji Pandit shouted and ran to rescue the victim. Seeing them coming to the place of occurrence accused-Pappu @ Pramod Kumar left the victim and fled away.

3. On the basis of report (Exhibit Ka-2), First Information Report was recorded under Section 307 I.P.C. at Police Station at about 6.20 a.m.. On the same day, Chik (Exhibit Ka-13) was prepared and consequent entries were also made in General Diary of Police Station (Exhibit Ka-14). Thereafter, victim was sent to Primary Health Center, Dewa, Barabanki for Medico Legal Examination. Doctor examined the victim and prepared injury report (Exhibit Ka-7). Investigation was handed over to Sub Inspector Srikant Shukla (P.W.5), who visited the place of occurrence and prepared site plan (Exhibit Ka-8). However, during investigation victim Sunder Lal succumbed to the injuries inflicted by appellant-accused, therefore, case was converted in Section 302 I.P.C.. After inquest report, dead body was sent for Post Mortem. Post Mortem report is Exhibit Ka-1.

4. Having found sufficient evidence against appellant-accused, the Investigating Officer filed charge-sheet against appellant-accused under Section 302 I.P.C. On the basis of charge-sheet appellant-accused was summoned by the Court. After committal of the case to the Court of Session, charge under Section 302 I.P.C. was framed from which appellant-accused denied and claimed to be tried.

5. In order to substantiate charge against appellant-accused, prosecution examined P.W.1 Lal Ji Shukla, PW-2 Dr. D.P.Gupta (Senior Radiologist), P.W.-3 Shohan Lal, P.W.-4 Dr. Mohd. Ehsaanullah and P.W.-5 Investigating Officer, Sub Inspector Srikant Shukla.

6. Appellant-accused was examined under Section 313 Cr.P.C. in which he denied the allegations made against him and stated that the witnesses have deposed under police pressure and also due to enmity.

7. At the conclusion of Trial, the lower Court having found sufficient evidence against appellant-accused convicted him under Section 304 part B I.P.C. and sentenced him to undergo rigorous imprisonment of five years.

8. Feeling aggrieved by his conviction and sentence, the appellant-accused has preferred this appeal.

9. During pendency of this appeal the appellant-accused filed Criminal Misc. Application No. 75379 of 2014 under Section 7A of Juvenile Justice ( Care and Protection of Children) Act, 2000 (hereinafter referred to as "Act of 2000" for convenience), stating that on the date of occurrence the appellant-accused was juvenile. His date of birth was 15.06.1971 and this fact was clearly mentioned in High School mark sheet. A copy of the High School mark sheet of the appellant-accused showing his date of birth to be 15.06.1971 was also annexed to the application. It was argued that under Section 7A of Act of 2000, the plea of juvenility can be raised at any stage. It is expedient to extract provisions of Section 7A of Act, 2000 as below:

"[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 recognised 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.]

10. According to Section 7A of Act of 2000, where a claim of juvenility is raised before any Court or Court is of the opinion that an accused person was a juvenile on the date of occurrence, the Court shall make an inquiry and after receiving evidence determine the age of such person and such Court shall record a finding whether the person is a juvenile or a child or not? Section 7A of Act, 2000 provides that such plea can be raised evenafter final disposal of the case. However, this Court having found prima facie material regarding juvenility of appellant-accused on the date of commission of offence, issued the following directions:

"Order on Crl. Misc. Application No. 75379 of 2014.

Learned counsel for the appellant and learned AGA appearing for State are present.

The aforesaid application was moved with prayer that the appellant be declared juvenile on the ground that on the date of occurrence the appellant was aged about 16 years and 2 months as per the academic record.

In view of the above, the matter is referred to the Juvenile Justice Board, District Barabanki, who shall inquire into the juvenility of the appellant. The Juvenile Justice Board, Barabanki shall also verify the genuineness of the High School mark-sheet of the appellant and after complying with all the provisions of the Act, shall submit report positively within eight weeks.

List after ten weeks."

11. The Juvenile Justice Board, Barabanki acted on the order passed by this Court on 15.07.2016 and registered the proceedings as Misc. Case No. 99 of 2016. The Juvenile Justice Board then submitted its report dated 08.09.2016, in which claim of the appellant-accused that his date of birth was 15.06.1971 on the date of occurrence, was accepted.

12. For the purposes of preparing the report, the Juvenile Justice Board examined C.W.-1 Sri Ashok Kumar Srivastava, Junior Assistant, Warsi Inter College, Dewa, Barabanki in order to prove mark-sheet issued by U.P. Higher Secondary Education Board, Allahabad.

13. Adhering to the provisions of Section 94 (2) of Juvenile Justice (Care and Protection of Children) Act,2015, which provides Birth Certificate from the school or the Matriculation or equivalent Certificate from Board to be considered first to decide the age of a person, the Juvenile Justice Board came to the conclusion that copy of High School mark-sheet was sufficient to prove the juvenility of appellant-accused on the date of commission of offence. Therefore, with above conclusion, the Juvenile Justice Board filed its report in compliance of this Court's order dated 15.07.2016, on 23.12.2016.

14. No objection was filed by either of the parties, evenafter lapse of seven months. However, this Court examined the report with the assistance of learned Counsel for the appellant as well as the Government counsel. There is no reason to reject this report. There is documentary evidence to show from the High School mark-sheet that the date of birth of the appellant is 15.06.1971, according to which the age of the appellant-accused was below 18 years. In other words, the appellant-accused was a juvenile or child within the meaning of that expression as defined in Section 2 (k) of Act, 2000.

15. The next question which arises is whether the conviction of appellant-accused is justified or not? No argument was advanced by learned counsel for appellant questioning conviction and sentence of appellant-accused. However, from memo of appeal, it appears that the judgment of Trial Court has been assailed mainly on two counts. Firstly, there is a conflict between medical evidence and the oral evidence and Secondly, the witnesses on whose testimony Trial Court has relied are interested witnesses and no independent witnesses were examined.

16. From perusal of the inquiry report (Exhibit Ka-7) of victim Sunder Lal, it appears that there were five incised wounds and four lacerated wounds on the body of victim. The victim is said to have been attacked by "banka" causing incised wound and when he fell down on the road, the appellant-accused attacked him with "brick bats". Since sharp edged weapon "banka" as well as "brick bats" have been used by appellant-accused, incised wounds and lacerated wounds both found on the body of the victim. Thus there is no contradiction between medical evidence and ocular evidence.

17. Two witnesses of the incident have been examined by the prosecution to prove the charge against appellant-accused. P.W.-1 Lal Ji Shukla is an independent witness, he runs his "chara machine" in the said locality and was present at the time of occurrence. No enmity against the accused has been alleged and also there is no reason for him to depose against the appellant-accused. P.W.1 has stated that first of all, he saw the accused running towards the victim but due to an intervening "khajoor" tree, he could not see the first attack. Thereafter he saw that accused was making assault with "brick bats". Another witness P.W.3 Shohan Lal, brother of the deceased, was also going to ease himself that he heard the alarm and rushed to the place of occurrence. His testimony is natural and not liable to be disbelieved. He has stated that he saw appellant-accused attacking victim with "banka" and "brick bats", thus the presence of both the witnesses on the place of occurrence is sufficiently proved. There is no reason to disbelieve them. P.W.-3 Shohan Lal cannot be disbelieved, merely on account of his relationship with the victim.

18. The Trial Court on the basis of evidence, has concluded the fact that appellant-accused attacked with "banka" and subsequently when the victim fell down "brick bats" were used indicates that the appellant-accused never intended to cause death of the victim. He just wanted to teach a lesson to him as the victim had illicit relationship with mother of appellant-accused.

19. The conclusion of Trial Court that appellant-accused being a teen ager at the time of occurrence could not have been in a position to tolerate such type of illicit relationship with his mother and defamation caused to the family must have provocated the appellant-accused to commit the offence is not without any substance. Thus the Trial Court has rightly concluded that such type of attack would be covered within explanation-1 of Section 300 of I.P.C. and Section 300 of I.P.C. and which is punishable under Section 304 Part II of I.P.C.

20. In the circumstances of the case, no interference in the finding recorded by Trial Court is warranted, regarding conviction of appellant-accused.

21. After recording finding of conviction of appellant-accused, next point for consideration is sentence of a juvenile. Learned Counsel for the appellant has cited Pradeep Kumar Versus State of U.P. 1995 SCC (Cri) 395 and Upendra Kumar Versus State of Bihar 2005 SCC (Cri) 778 to argue that sentence awarded to the appellant-accused should be quashed and he should be directed to be released. In both these cases while sustaining the conviction of the appellant-accused, Hon'ble Apex Court has quashed the sentence awarded to the appellant and directed to release him.

22. On the point of sentence to be awarded to a convict who was a juvenile when he committed the offence, there is a divergence of views of Hon'ble Apex Court.

23. In the first category of views the conviction of the juvenile was upheld and the sentence was quashed directing release of convict forthwith as he cannot be sent to ''juvenile home'. Jayendra v. State of Uttar Pradesh, (1981) 4 SCC 149, Pradeep Kumar v. State of U.P., 1995 Supp (4) SCC 419, and Upendra Kumar v. State of Bihar, (2005) 3 SCC 592.

24. In Gurpreet Singh v. State of Punjab, (2005) 12 SCC 615 one of the appellants/ accused was a juvenile on the date of occurrence and continued to be so, Hon'ble Court directed him to be sentenced to a juvenile home. However, if on the date of sentence, the accused is no longer a juvenile, then the sentence imposed on him was held liable to be set aside.

25. In the second category of views the conviction of the appellant was upheld but the sentence awarded was modified to the period of detention already undergone. Satish @ Dhanna v. State of Madhya Pradesh, (2009) 14 SCC 187 and Dharambir v. State (NCT of Delhi), (2010) 5 SCC 344.

26. The third category of views includes cases where conviction of the appellant / accused who was held to be a juvenile on the date of commission of the offence was set aside and the entire case was remitted to the Juvenile Justice Board for disposal in accordance with the provisions of the Juvenile Justice (Care and Protection of Children) Act, 2000. Daya Nand v. State of Haryana, (2011) 2 SCC 224.

27. The fourth category of views includes those cases where the conviction of the appellant/juvenile was upheld and the records were directed to be placed before the Juvenile Justice Board for awarding suitable punishment to the appellant. Ashwani Kumar Saxena v. State of Madhya Pradesh, (2012) 9 SCC 750.

28. In the present case, as the appellant-accused is around 34 years old, he cannot be sent to "Juvenile Home". He cannot even be given in the guardianship of his parents, but the appellant/accused who has been held to be juvenile should not go unpunished. Keeping in view above facts Hon'ble Apex Court took the view in Ashwani Kumar Saxena v. State of Madhya Pradesh (supra) that the matter of punishment to be awarded to him must be left to the Juvenile Justice Board, this is the plain requirement of Section 20 of Act, of 2000. Section 20 of Act, 2000 provides:

"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.

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 (l) 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.]"

29. Thus where a juvenile is found guilty of the offence, alleged to have been considered, he simply cannot go unpunished, but what punishment should be awarded, must be left to the Juvenile Justice Board constituted under the Act.

30. In the present case, the offence was committed by appellant-accused when the Act of 2000 was not in existence in stead Juvenile Justice Act, 1986 was enforced, therefore, only the punishment not greater than those postulated by Juvenile Justice Act, 1986 ought to be awarded to him.

31. Accordingly, while upholding the conviction of appellant-accused, the sentence awarded by the Court below is liable to be quashed and the matter to be remanded to the Juvenile Justice Board for determining the appropriate punishment in the light of provisions of the Act.

32. The appeal is partly allowed and the case is remitted to Juvenile Justice Board to act in accordance with directions given above. Appellant/accused is directed to appear before the Juvenile Justice Board on 31.08.2017.

Order Date:28.07.2017

Arvind