Allahabad High Court
Kanhaiya And Others vs State Of U.P. on 23 July, 2025
Author: Siddharth
Bench: Siddharth
HIGH COURT OF JUDICATURE AT ALLAHABAD
A.F.R.
Judgment Reserved on 03.07.2025
Judgment Delivered on 23.07.2025
Neutral Citation No. - 2025:AHC:120471-DB
Court No. - 47
Case :- CRIMINAL APPEAL No. - 2125 of 1984
Appellant :- Kanhaiya And Others
Respondent :- State of U.P.
Counsel for Appellant :- Gagan Mehta,Kalp Nath,Parmeshwar Kr. Chaudhary
Counsel for Respondent :- A.G.A.
Hon'ble Siddharth,J.
Hon'ble Avnish Saxena,J.
( Per Justice Avnish Saxena)
1. Heard Sri Kalpnath, learned counsel for the surviving appellant nos. 4 and 5, Mrs. Manju Thakur, learned AGA-1st for the State and perused the record.
2. This criminal appeal has been preferred against the judgment of conviction and sentence dated 31st July, 1984 passed by Special Judge, Varanasi in Sessions Trial No. 240 of 1982, State Vs. Kanhaiya and 4 others, arose out of case crime no. 203 of 1982, P.S. Bhelupur, District Varanasi, whereby the five appellants have been convicted for committing the offence of murder after forming unlawful assembly under Section 302 read with Section 149 IPC and Section 147 IPC. EACH convict has been sentenced to life imprisonment u/s 302 IPC and one year's rigorous imprisonment for committing offence under Section 147 IPC. It is directed that both the sentences shall run concurrently.
3. Out of five accused-appellants, namely, Kanhaiya, Mannu, Bahadur @ Bhagudar, Chhedi and Madan, first three accused-appellants passed away during the pendency of appeal. Hence, the appeal was dismissed as abated against Kanhaiya and Mannu by order dated 2nd February, 2018, whereas appeal against Bahadur @ Bhagudar was dismissed as abated by order dated 30th August, 2022.
On the point of declaration of appellant nos. 4 and 5 as 'Child' :-
4. The remaining two accused, namely, Chhedi and Madan were claimed to be minor and below 16 years of age at the time of incident. Therefore, the learned counsel for the appellants no. 4 and 5 has filed two applications, viz., Crl. Misc. Application No. 1 of 2018 to declare appellant no.4, Chhedi @ Chhedi Lal son of Gulab, as 'child' and Crl. Misc. Application No. nil of 2018 for declaring appellant no.5, Madan, as a 'child'.
5. Hence prior to considering the merits of the grounds taken in appeal, it would be expedient to consider the above noted applications moved by the learned counsel for the appellants, who has relied on the case of Ashok Kumar Mehra and another Vs. State of Punjab1 on the point that the application for declaring a person as juvenile could be moved and considered at any stage, including the appellate stage.
6. We have perused the later part of the impugned judgment under challenge in appeal and found that the issue of juvenility of accused-Chhedi and Madan was raised even at the time of trial before the trial judge and the trial judge while convicting the accused has made an observation that the accused persons are more than 12 years of age and held them responsible for committing the crime. The relevant paragraph of the impugned judgment is required to be quoted underneath :-
"As regards the last submission of the learned defence counsel that accused Chhedi and Madan are minor and therefore, it is most improbable that they could have participated in this occurrence, it is to be observed that any person of 12 or more than 12 years of age could be held responsible for committing the crime. Undisputedly both the accused Chhedi and Madan were more than 12 years of the age at the time of occurrence. Therefore, it could not be said that they could not have participated in the occurrence."
7. On the point of age of the appellant, Chhedi @ Chhedi Lal son of Gulab, it is mentioned in the accompanying affidavit that the date of birth of accused-Chhedi is 3rd April, 1969, as mentioned in the school leaving certificate dated 29th April 1982 of Basic Primary Pathshala, Shivpurwa Mandal, Zila Varanasi, wherein it is mentioned that the name of Chhedi Lal has been deleted from the register of school as he is continuously absent. He has passed class-III and was in class-IV, when his name was struck off due to his indefinite absence from school.
8. The incident occurred on 8th April, 1982. While recording the statement of appellant-Chhedi under Section 313 Cr.P.C., on 23rd June 1984, the learned trial judge has mentioned his age as 15 years. This shows that the Trial Judge was aware of the fact that child was below 16 years of age. According to Transfer Certificate (T.C.) the age of the accused, Chhedi, was 13 years and 5 days on the date of occurrence.
9. So far as, the age of appellant-Madan son of Gulab, is concerned, it is mentioned in the accompanying affidavit that the date of birth of accused/appellant-Madan is 28th July, 1967, as is mentioned in the birth certificate issued by Municipal Corporation, dated 4th May, 2018.
10. The incident occurred on 8th April, 1982. While recording the statement of accused, Madan, under Section 313 Cr.P.C. on 23rd June 1984, learned trial judge has mentioned his age as 13 years. This shows that the Trial Judge was aware of the fact that Madan was below 16 years of age. According to birth certificate issued by Municipal Corporation, the age of the accused/appellant- Madan was 15 years, 3 months and 5 days on the date of occurrence.
11. The learned trial judge while dealing with the age of accused has merely considered that the age of accused-appellant nos. 4 and 5 as more than 12 years, but has not considered them as child and youthful offender in view of Sections 2(4) and (13) respectively of U.P. Children Act, 1951. The Act provides under sub-Section (4) the definition of 'child' under the Act, which means "a person under the age of sixteen years", whereas, sub-Section (13) provides the definition of 'youthful offender' meaning "any child, who has been found to have committed an offence punishable with transportation or imprisonment".
12. Chapter-IV of the Act deals with youthful offender. On the point of sentence, Section 27 of the Act is reiterated underneath:-
"Section 27:Sentences that may not be passed on child.- Notwithstanding anything to the contrary contained in any law, no court shall sentence a child to death or transportation or imprisonment for any term or commit him to prison in default of payment of fine :Provided that a child who is twelve years of age or upwards may be committed to prison when the court certifies that he is of so unruly, or of so depraved a character that he is not fit to be sent to an approved school and that none of the other methods in which the case may legally be dealt with is suitable."
Wherein, by non-obstante clause the trial court is restrained from imposing a sentence on child but it is provided that if a child is 12 years of age or upwards he may be committed to prison only when the court certifies that the child is 'so unruly', 'so depraved a character' that the court considered it fit to send the child to prison.
13. Section 33 of the Act provides, the method of dealing with children charged with offences and what sentence could be awarded once the court is satisfied about the guilt of the child. The provision is reiterated underneath :-
"Section 33:Methods of dealing with children charged with offences.- Where a child charged with any offence is tried by any court, and the court is satisfied of his guilt the court shall, before passing orders, take into consideration the manner in which, under the provisions of this or any other Act enabling the court to deal with the case, the case should be dealt with, namely, whether-
(a) by discharging the offender after due admonition; or
(b) by committing the offender to the care of his parent, guardian, other adult relative or other fit person or such parent, guardian, relative or person executing a bond to be responsible for his good behaviour; or
(c) by so discharging the offender and placing him under the supervision of a person named by the court; or
(d) by committing the offender to the custody of any suitable person, whether a relative or not, who is willing to undertake the care of the offender; or
(e) by releasing the offender on probation of good conduct; or
(f) by sending the offender to an approved school; or
(g) by ordering the offender to pay a fine; or
(h) by ordering the parent or guardian of the offender to pay a fine; or
(i) by dealing with the case in any other manner in which it may be legally dealt with ; or
(j) when the offender is a child of twelve years of age or upwards by sentencing him to imprisonment:
Provided that nothing in this section shall be construed as authorizing the court to deal with any case in any manner in which it could not deal with the case but for this section."
14. Section 63 of the Act provides for joint trial of children and adult, which provides that the child may be jointly tried together with an adult, but the sentence is to be awarded in accordance with the provision of this Act. Section 63 is reiterated underneath:-
"Section 63: Joint trial of the child and adult.- Where a child is charged with an offence together with any, other person not being a child then notwithstanding anything contained in this Act the child may be tried top ether with the adult in accordance with the provisions of the Code of Criminal Procedure, 1898, and nothing in this Act shall require the child to be tried by a Juvenile Court but the sentence, if any, awarded to the child shall be in accordance with the provisions of this Act."
15. As to the presumption and determination of age of child, Section 73 of the Act casts a duty on the court to make an inquiry as to the age of a person before the court. Section 73 is reiterated underneath:-
"Section 73: Presumption and determination of age.- (1) Where a person, whether charged with an offence or not, is brought before any court otherwise than for the purpose of giving evidence and it appears to the court that he is a child, the court may make due inquiry as to the age of that person and for that purpose, may take such evidence as may be forthcoming, and may record a finding thereon, stating his age as nearly as may be.
(2) A declaration by the court under the preceding sub-section as to the person brought before it being under the age of sixteen years shall for the purposes of this Act be final and no court shall in appeal or revision interfere with any such declaration."
In the present case the trial judge has specifically mentioned the age of Chhedi and Madan are 15 years and 13 years, respectively. while recording their statements under Section 313 Cr.P.C., and also considered the age of Chhedi and Madan as above 12 years, though the Act specifically provides that a child less than sixteen years of age is a youthful offender. The learned trial judge has committed an error of law and fact in failing to determine the age of the child and sentencing the appellants as an adult.
16. The conviction of accused Madan and Chhedi has been recorded in the year 1984. The appeal is pending since then. The trial court was aware of the age of appellants but the trial judge has sentenced the children ignoring the provision of Section 73 of the Act and has failed to determine their age. The Act of 1951 remained in force till the Union legislature passed the Juvenile Justice Act, 1986, enforced w.e.f., 1st December, 1986. Section 63 of Juvenile Justice Act provides for repeal and savings of all the acts applicable in the State dealing with juvenile. The repealing of Act of 1951 by the Act of 1986 has been dealt with by this High Court in the case of Mohd. Gufran Vs. State of U.P.2 In paragraph 3 it was held, " I, however, find that as the Juvenile Justice Act, 1986 (hereinafter referred to as the Juvenile Act) came into force with effect from 3.12.1986 and in view of provisions of Section 63 of the Juvenile Act, 1986 regarding repeal, the U.P. Children Act 1951 relied upon by the trial court is now no longer in existence and the case has to be proceeded with under the provisions of the Juvenile Act, 1986......". Section 63 of the Juvenile Justice Act is reiterated underneath:-
"Section 63 of the J.J.Act: Repeal and savings. - If, immediately before the date on which this Act comes into force in any State, there is in force in that State, any law corresponding to this Act, that law shall stand repealed on the said date :
Provided that the repeal shall not affect -
(a) The previous operation of any law so repealed or anything duly done or suffered thereunder ; or
(b) Any right, privilege, obligation or liability acquired, accrued or incurred under any law so repealed ; or
(c) Any penalty, forfeiture or punishment incurred in respect of any offence committed against any law so repealed; or
(d) any investigation, legal proceeding or remedy in respect of any such right, privilege, obligation, liability, penalty, forfeiture or punishment as aforesaid;
and any such investigation, legal proceeding or remedy may be instituted, continued or enforced and any such penalty, forfeiture or punishment may be imposed, as if this Act had not been passed."
Even in the act of 1986, the juvenile means a boy, who has not attained the age of 16 years but for a girl the age was 18 years, which was 16 years for both boy and girl in the U.P. Children Act, 1951.
17. The document filed in support of the age of child/youthful offender is substantiated by school leaving certificate and date of birth certificate of Nagar Nigam, which remained uncontroverted. Sending the matter for inquiry before the trial court or conducting any further inquiry at this stage in respect to certificate appended by the two youthful offenders, may lead to further delay in disposal of the case, more so, when learned trial judge has made an observation in the judgment that two accused are above 12 years of age and recorded their statements entering their age as less than 16 years. The documents appended by accused, Madan and Chhedi, supported by affidavits clearly, show that Madan was 15 years, 3 months and 20 days of age, whereas, Chhedi was 13 years and 5 days of age on the date of incident (8th April 1982).
18. Therefore, the two appellants were the youthful offenders within the meaning provides under U.P.Children Act, 1951. Hence the Crl. Misc. Application No. 1 of 2018 and Crl. Misc. Application No. nil of 2018 are Allowed.
Discussion on merit of grounds in Appeal :-
19. According to the FIR lodged by the informant Smt. Phulari (P.W.-1) written by Vishnu (P.W.-2) on 8th April, 1982, 10.30 p.m. at P.S. Bhelupur, Sadar, Varanasi, situated at distance of 5 kms. from the place of incident i.e. Tulsipur, Varanasi, there was a drain (parnala, spout) falling from the house of informant open in the lane. In the evening of 8th April, 1982 Kanhaiya, Bahadur and Madan had closed that drain as it used to damage the wall of their house and create sludge on the pathway. In the night when her son Lakhan returned home at 9.30 p.m., he has opened that drain, on which Kanhaiya exhorted and stated that Lakhan is opening the drain. Hearing the same Mannu, Bahadur @ Bhagudar, Chhedi and Madan reached there. Bahadur @ Bhagudar was having iron rod, Madan was carrying brick, whereas, Kanhaiya, Mannu and Chhedi were wielding lathis in their hands. They have dragged Lakhan to the trisection (tiraha) and inflicted lathi and iron rod blows on Lakhan. On hearing the hue and cry of her son, the informant, her daughter Chandar (P.W.-3) came out from the house and saw that the accused were beating her son. On wailing for help, Vishnu, Bhaiya Lal and Sukkhu came to the spot. Lakhan became unconscious and was dragged by Kanhaiya towards the house and stated that Lakhan is still alive, on which Madan gave a brick blow on his head. Lakhan died on the spot. On seeing villagers, the accused sprinted away from the spot. The incident was witnessed in the light of lantern and moonlight.
20. The FIR has been registered against Kanhaiya, Mannu, Bahadur @ Bhagudar, Chhedi and Madan. The inquest on the dead body of Lakhan has been carried out by S.I. Hari Raj Singh (P.W.-6) at 1.00 a.m. in the intervening night of 8/9.4.1982 in presence of inquest witnesses, namely, Kailash Prasad, Bhaiya Lal son of Khilawan, Babu Lal, Somnath and Bhaiya Lal son of Heera Lal, wherein it is reported that Lakhan died due to injuries sustained by him.
21. After inquest, the dead body was sealed on the spot and handed over to Constable- Lalta Prasad Yadav (P.W.-4) and Constable- Singhasan Prasad Nirala for post mortem examination, the post mortem of the dead body was conducted on 9th April, 1982 at 3.00 p.m. by Dr. C.B.Tripathi (P.W.-5). Following ante mortem injuries have been recorded in the post mortem report.
(i) Lacerated would 4-1/2 cm x 2 cm x brain deep over right forehead including eye-brow outer part, 6 cm right to midline.
(ii) Contusion 5 cm x 1 cm over right eye upper lid, contusion externally (outward) to the Zygoma-- Transversely placed.
(iii) Lacerated wound transversely placed 4-1/2 cm x 1 cm over left ear pinna, lacerated the cartilage.
(iv) Lacerated wound transversely placed 4-1/2 cm x 1-/12 cm scalp deep over left occipito-- partial region of head. 7 cm above and back to left ear.
(v) Lacerated wound 1-1/2 cm x 3/4 cm over back of pinna of left ear 1/2 cm below injury no.3.
(vi) Contused swelling 11 cm x 7 cm over left cheek, mandibular region including chin with fracture of body of mandable left side at mid.
(vii) Linear abraded contusion 9 cm x 1 cm - transversely placed over right side mandibular region (body) inclucing mid line of chin with fracture of mandibule in the mid line (front).
(viii) Abraded contusion 3 cm x 1 cm over right mastoid region 2 cm behind right ear.
(ix) Abraded contusion 2-1/2 cm x 1-1/2 cm over right collar bone-- outer 1/3rd-- 8 cm outer to mid line.
(x) Abraded contusion 3 cm x 3-1/2 cm over front of right knee joint.
(xi) Lacerated wound 1 cm x ½ cm over back of upper third of left fore arm with fracture of ulna 4 cm below elbow joint.
(xii) Multiple abraded contusions in an area of 34 cm x 12 cm over back of left side trunk from upper border of scapula to lumber region including mid line.
On internal examination I found the following condition:-
Scalp-Contusion of scalp (on opening and reflection) 13 cm x 12 cm over both side occipital region and adjoining perital region both side.
Skull-Depressed comminuted fracture of right side frontal bone including right supra arbital ridge and superior surface of right orbital bone.
Membrace- Ruptured over right frontal lobe.
Brain- Laceration of right frontal lobe including orbital surface. Sub dural haemorrhage over left temporal lobe.
Base-Fracture of both side temporal bone communicating through fracture of middle fossa.
22. After investigation the charge sheet was submitted under Section 302/147 IPC against the appellants-accused.
23. The prosecution produced three witnesses of fact and three formal witnesses. Smt. Phulari and Smt. Chandar were examined as P.W.-1 and P.W.-3 respectively, whereas Vishnu has been examined as P.W.-2, independent witness, who was declared hostile.
24. Before dealing with the depositions of Smt. Phulari and Smt. Chandar, the deposition of independent witness Vishnu is required to be discussed.
25. Learned trial judge while appreciating the evidence has considered the deposition of P.W.-2 Vishnu as partly reliable and partly non-reliable. On the point of FIR and source of light, this witness has not been relied upon. P.W.-2 has stated, being scribe of written information, that last eleven lines of the written information was written in the police station, though P.W.-1 Smt. Phulari has deposed that the complete first information was dictated to P.W.-2 Vishnu at her residence. Learned trial judge has gone through the first information report Ex.Ka-1 and found that statement of P.W.-2 Vishnu that the last eleven lines of the written information were written at the police station does not appeal to reason is based on the fact that there is continuity of hand-writing and use of one pen. The observation of the trial judge does not requires any interference.
26. Moreover, the last eleven lines of the FIR shows that the informant and witness had seen the incident in the light of moon and lantern. The trial judge has made an observation about the existence of the source of light and belied the contention of defense that the source of light has not been proved by the prosecution as the lantern has not been taken into custody by the Investigating Officer. It is also observed that the assailants were neighbours, who could be easily identified. This observation of learned trial judge also does not require interference in view of the observation of Apex Court in the case of Kalika Tiwari Vs. state of Bihar3 that " The visible capacity of urban people who are acclimatized to florescent light is not the standard to be applied to villagers whose optical potency is attuned to country made lamps. Visibility of villagers is conditioned to such lights and hence it would be quite possible for them to identify men and matters in such lights".
27. Further, the Apex Court in the case of Shivraj Bapuray Jadhav and others Vs. State of Karnataka4 has observed that the parties who knows each other as neighbours could easily identify each other even from their voices.
28. P.W.-2 Vishnu, further stated that there was an altercation between Lakhan (deceased) and Mannu, Kanhaiya, Bahadur, Mandan and Chhedi, due to drain (spout- parnala), when Lakhan has thrown bricks (Addha) the persons gathered there had stepped back "थोड़ा पीछे हट गए". He then stated that there was no weapon in the hand of Bahadur and Chhedi. On seeing Kailash, Sukkhu, Shobhnath and others, accused sprinted away. During his cross examination this witness has stated that there is lane in between the house of accused and deceased-Lakhan. The incident took place in the lane. He specifically stated that Madan has injured Lakhan by the brick in his hand. From the statement of Vishnu it is reflected that he has witnessed the incident and presence of all the accused, though stated that Bahadur and Chhedi were not having any weapon, which is considered not reliable by the Trial Judge. We are of the same view as seeing the involvement of family members in beating Lakhan, how the two accused would have restraint themselves from involving in the fight.
29. The point for consideration in the present appeal is the role of two child- accused in their individual acts and also whether they were the members of unlawful assembly.
30. It is consistent statement of P.W.-1 Smt.Phulari and P.W.-3 Smt. Chandar, respectively the mother and sister of deceased-Lakhan, that the accused came to the house to block the drain, as it was damaging the wall of the accused and created sludge in the lane in between the house of accused and deceased. It is also the consistent statement of these two witnesses that Lakhan, when he returned home at about 9.30 p.m. on 08.04.1982, he went to open the drain, which was the cause of altercation and fight between them. It is further stated that when Lakhan was opening the drain, accused Kanhaiya has exhorted that Lakhan is opening the drain, on hearing which, other co-accused came out.
31. There are 12 ante mortem injuries on the person of deceased, caused by hard and blunt object. In the opinion of Dr. C.B.Tripathi, P.W.-5, the deceased Lakhan died due to coma as a result of head injury and injury to the brain. The post mortem report reveals fatal injuries on the head of deceased.
32. The prosecution has proved the presence of appellants-accused and the place of incident. P.W.-5 Dr. C.B.Tripathi has refuted the suggestion of defense that the injuries sustained by Lakhan were due to fall.
33. The point of grave and sudden provocation allegedly given by the deceased is of no help to the appellants-aggressors, as the prosecution has proved that prior to altercation, the accused had closed the drain of the house of the deceased, which was being opened by the deceased when the incident took place. This shows that accused themselves had provoked the cause.
34. As three of the main accused have already passed away. The point of consideration is the role of youthful offender in the incident, as being the member of unlawful assembly for committing the act with the same intention and knowledge attract punishment.
35. From the statement of P.W.-1 Phulari, the relation between the accused is clarified. Accused Mannu was brother of Gulab and Heera; Gulab and Heera passed away. Accused-Bahadur is the son of Mannu; Accused Chhedi and Madan were sons of Gulab; and Kanhaiya was son of Heera. There was specific question put to P.W.-1 Smt. Phulari that all the male members of the family have been implicated as accused in the case, which was replied affirmatively. The purpose behind the question is false implication of all the male members of the family, so that, there is no-one to stand to fight their legal battle.
36. Smt. Phulari and Smt. Chandar in their respective depositions have stated that Chhedi was inflicting lathi blow and Madan had given a brick blow on the head of deceased-Lakhan. Moreover, PW-3 Vishnu has also stated that Madan had inflicted brick blow on Lakhan. Therefore, their role of the appellants in the incident, which has rightly been considered by the trial judge. Hence, we do not find any ground of interference in the order of conviction.
37. The only point of consideration is whether the youthful offenders/appellants are to be punished like an adult.
38. Section 63 of 1951 Act, though provides for joint trial of child and adult, but the sentence, if any, is to be awarded to the child in accordance with Section 33 of the Act. The learned trial judge though considered the surviving appellants above 12 years of age but had ignored to apply the provisions of Uttar Pradesh Children Act, 1951 in awarding punishment.
39. Section 27 of the Act further clarifies that a child, who is 12 years of age or upward may be committed to prison when the court certifies that the child is (1) so unruly, (2) so depraved a character that he is not fit to be sent to an 'approved school'. The trial judge has not even considered this aspect of punishment and sent the appellants to the prison.
40. Therefore, we are of the considerate view that the appellants who were child and youthful offenders at the time of incident though rightly been considered to be involved in the offence of being a member of unlawful assembly but incorrectly being sentenced as an adult.
41. Therefore, the appeal is partly allowed. The conviction of accused-appellants being youthful offenders is upheld but their sentences are being reduced to period already undergone in Sessions Trial No. 240 of 1982, State Vs. Kanhaiya and 4 others, under Section 302 read with Section 149 and Section 147 IPC in case crime no. 203 of 1982, P.S. Bhelupur, District Varanasi.
42. Office is directed to return the trial court's record along with a copy of this judgment to the trial court within ten days.
Order Date :- 23/07/2025
Abhishek Sri.
(Avnish Saxena,J.) (Siddharth,J.)
