SHER MOHAMMAD Vs. STATE OF U P

JUDGEMENT

(1.) D. K. Trivedi, J. The present criminal appeal is directed against the judgment and order dated 19-7-1976 passed by the IInd Additional District and Sessions Judge, Lucknow, convicting the appellant Sher Mohammad under Section 302,i. P. C. and Section 25. Arms Act and awarding the sentence of Life Imprisonment under Section 302,i. P. C. and one year's R. I. under Section 25, Arms Act. Both these sentences were directed to run concurrently. The learned Trial Judge by the same judgment and order acquitted two other co- accused namely Sarjoo and Ram Lal on the ground of benefit of doubt.

(2.) THE prosecution case, in brief, is that Bhawani Singh was a Driver in the Estate Dapartment of the U. P. Government and Raj Bahadur complainant was also employed as a Mali in the U. P. Government. Both these persona used to live in one of the quarters of the premises known as Darul Shafa. It is said that on 26-12-1974 at about 7-30 p. m. Bhawani Singh started his car in order to join his duty but as soon as he started his car, he saw the appellant alongwith two other persons standing near the Char, par of Raj Bahadur and were trying to take out something from the Chappar. Bhawani Singh stopped his car and went near the accused persons who were trying to find out something from the Chappar. Bhawani Singh made an enquiry and on enquiry alteration took place between Bhawani Singh on the one haid the accused persons on the other. It is further said that accused Sher Mohammad was armed with a Gupti and the other two accused persons were armed with knives. It is said that on the exhorta tion of the other two accused persons to kill Bhawani Singh, Sher Mohammad attacked him with Gupti Bhawani Singh tried to hold the Gupti but only the cover of the Gupti remained in the hand of Bhawaai Singh. It is said that Sher Mohammad accused then gave two Gupti blows to Bhawaai Singh but Bhawani Singh despite the two injuries succeeded in catching hold of Sher Mohammad. It is said that hearing the alarm several persons reached there and they arrested the accused Sher Mohammad alongwith Gupti on the spot. THE other two accused persons ran away but they were also chased by some of the witnesses as well as the police men who reached there hearing the alarm. It is said that the two accused porsons were also arrested by the Police after some distance. It is said that thereafter Bhawani Singh was taken to Civil Hospital by Tikam Singh where he was attended by Dr. B. B. Mehrotra at 8-15 P. M. but thereafter at about 8-30 p. m. Bhawani Singh succumbed to his injuries and died. All the three accused persons alongwith Gupti as well as two knives were brought at Police Station Hazratganj by P. W. 1 Raj Bahadur and other witnesses including the Police Officers and handed over to the Police. Raj Bahadur also lodged a report Ext. ka-1 of this incident at 8-25 p. m. P. W. 5 Ramjit Singh Head Moharrir wrote down the F. I R. and thereafter registered a case and made entries in the General Diary. He also received a Gupti as well as two knives alleged to be recovered from the possession of the accused persons. P. W. 11 Udai Raj Singh, S. I. Police Station Hazratganj was present at the time when the F. I. R. was lodged, therefore, investigation was entrusted to him. He recorded the statement of the complainant Raj Bhadur and interrogated the accused persons and thereafter went to the Civil Hospital but learnt about the death of Bhawani Singh. He prepared the inquest report Ext. ka-4 and other relevant papers for post-mortem examination of the dead body of Bhawani Singh. After completing the investigation he submitted charge-sheet against the accused persons.

(3.) THE prosecution, in support of its case, examined 12 witnesses. Out of them P. W. 1 Raj Bahadur P. W. 2 Tikam Singh, P. W. 3 Ram Chandra are the witnesses of fact. P W. 4 Dr. B. B Mehrotra examined the injuries of the deceased Bhawani Singh when he was alive and proved the injury report Ext. ka-5. P. W. 5 Ramji Singh Head Moharrir Police Station Hazratganj recorded the First Information Report and proved other entires in the General Diary. P. W. 6 Suraj Bilas Singh Constable Sadar Malkhana proved that the bundles which were brought from Police Station Hazratganj were kept in sealed condition and remained in the sealed condition. P. W. 7 Farhat Ullah, Head Moharrir Hazratganj stated that he sent the sealed articles from Police Station Malkhana to Sadar Malkhana. P. W. 8 Asghar Mehandi, Constable, proved that he brought the sealed articles from Police Station, Hazra ganj, to Sadar Malkhana. P. W. 9 Constable Iqbal Bahadur brought the dead body of deceased Bhawani Singh for autopsy and P. W. 10 Uma Shankar Verma Head Constable, Control Room, proved the arrest of the other two accused. P. W. 11 S. I. Udai Raj Singh conducted the investigation and submitted charge-sheet against the accused persons, 5. On the other hand the accused persons denied the posecution case and stated that they have been falsely implicated in this case. Appellant Sher Mohammad in his statement stated that on the date of incident he took wine shop, then the police arrested him and brought him to the Police Station and thereafter implicated him in this case. 7. THE learned Sessions Judge after considering the evidence on record came to the conclusion that the prosecution has successfully proved the guilt of the appellant Sher Mohammad beyond reasonable doubt and, therefore, he convicted the appellants and sentenced him as mentioned above. How ever, as regards the two other co-accused persons are concerned, the trial Judge recorded a finding that the prosecution has failed to prove the guilt of these two co-accused persons beyond reasonable doubt hence they are entitled to get benefit of the doubt. 8. Sher Mohammad, aggrieved by the said judgment and order filed this appeal in this Court. 9. We have heard the learned Counsel for the appellant Shri Mridul Rakesh and the Additional Government Advocate at great length and perused the record. 10. THE learned Counsel for the appellant has tried to challenge the statement of the eye-witnesses on the basis of some minor discrepancies and infirmities but the same, in our opinion, are not fatal and the C mnsel for the appellant also finding it difficult to challenge the prosecution case, agreed that the prosecution case against Sher Mohammad is proved beyond reason able doubt. THE case against Sher Mohammad is fully proved by the evidence of three eye-witnesses who are independent witnesses. THE presence of these three persons on the spot was also natural and there is nothing in their state ments on which basis it can be said tiiat they are not telling the correct facts. Appellant Sher Mohammad was arrested on the spot alongwith Gupti and the same was also deposited at the Police Station, at the tima of lodging of the First Information Report. THE First Information Report was also lodged without any delay and, therefore, it cannot be said the prosecution story was concocted or fabricated one. THE Gupti was found blood stained by the Chemical Examiner. THE statements of the eye-witnesses further find full support from the Medical evidence and in these circumstances, in our opinion, the learned Sessions Judge, committed no error in holding that the prosecution has successfully proved the guilt of the appellant beyond reasonable doubt. 11. THE main contention of the learned Counsel for the appellant is that the appellant Sher Mohammad was below 16 years of age on the date of incident, therefore, in view of Section 27 of the U. P. Children Act, he can not be sentenced or sent to Jail. We find forec in this contention. THE pro visions of U. P. Childern Act, 1952 (U. P. Act No. 1 of 1951) came into force on June 20, 1962 in Lucknow. A child has been defined under Section 2 (4) of the U. P. Children Act as under : "2 (4) 'child' means a person under the age of sixteen years. " In the instant case the incident is said to have taken place on 26-12-1974. THE statement of accused Sher Mohammad under Section 313, Cr. P. C. was recorded on 8-7-1976 in which he stated that his age is 16-17 years meaning thereby that he was aged about 14-15 years at the time of incident. THE statement of accused on the point of age has not been challenged by the prosecution before the learned Trial Judge and the learned Trial Judge has also considered the age of the appellant Sher Mohammad as 16- 17 years at the time of awarding of sentence to him. Apart from the Court also by order dated 27-11- 1989 directed the Sessions Judge, Lucknow to submit a report regarding the present age of accused Sher Mohammad. In compliance of the order of this Court Sher Mohammad was medically examined by the Chief Medical Officer, Lucknow. THE C. M. O. , Lucknow to submitted his report dated 18-12-1989 showing that the age of accused Sher Mohammad as on 28-12-1989 was 28 years. THE learned Trial Judge thereafter directed the patties including the State to lead evidence if any but no one led any evidence in support or against the report submitted by the C. M. O. As pointed out above even according to the report of the C. M. O. and the opinion of the learned Trial Judge the accused was below 16 years at the time of incident. In these circumstances it is proved that accused Sher Mohammad was below 16 years at the time of incident and further U. P. Children Act was in full force in Lucknow. Section 27 of the Children Act reads as under : "27. Sentences that may not be passed on child.- Notwithstanding any thing 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 befault 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. " 12. THE above mentioned provision clearly shows that sentencing of child below 16 years is prohibited by this Act and, therefore, no Court shall sentence a child to : death or transpoitation or imprisonment for any term or commit him to prison in default of fine. THEse provisions themselves show that a child cannot be sentenced or sent to prison for any term of imprisonment. However, the proviso to Section 27 as mentioned above is an exception. 13. THE proviso provides that a child who is 12 years of age or upwards meaning thereby child aged above 12 years but below 16 years can be sentenced or sent to prison; if, the Court certifies that he is of so unruly or of so depraved a character, that he is not fit to be sent to the approved School or when none of the other modes are suitable. It may be pointed out here that even Sec tion 82 of the Indian Penal Code provides that nothing is an offence which is done by a child under seven years of age. Section 83 of the Indian Penal Code further provides that nothing is an offence which is done by a child of above 7 years of age and under 12 years if the same has not attained f sufficient maturity of understanding to judge the nature and consequence of hh conduct. Similarly, U. P. Children Act provides that a child below 16 years cannot be sent to Jail. However, an exception has been made in the U. P. Children Act that if a child is unruly or of a depraved character then the same can be sent to Jail. Under the Children Act if an offence has been committed by the child then the Courts either can send him to Approved School for sometime or dis charge him after due adminition or release him on probation of good conduct as provided under Sections 29 and 30 of the Act. Section 33 thereafter sum marises the various modes for dealing with a child charged with an offence. THE maximum age for sending a child to the Approved School under this Act is 18 years. 14. THE Hon'ble Supreme Court in a case Jayendra and another, 1981 SCC (Crl) 809, held that the appellant who was child at the time of the incident cannot be sentenced or sent to Jail. THE relevant portion of the judgment runs as under : "section 2 (4) of the Uttar Pradesh Children Act, 1951 (U. P. Act 1 of 1952) defines a child to mean a person under the age of 16 years. Taking into account the various circumstances on the record of the case we are of the opinion that the appellant Jayendra was a child within the meaning of this provision on the date of the offence. Section 27 of the aforesaid Act says that notwithstanding anything to the contrary in any law, no Court shall sentence a child to imprisonment for life or to any term of imprisonment. Sec tion 29 provides, insofar as it is material, that if a child is found to have committed an offence punishable with imprisonment, the Court may order him to be sent to an approved school for such period of stay as will not exceed the attainment by the child of the age of 18 years. In the normal course, we would have directed that the appellant Jayendra should be sent to an approved school but in view of the fact that he is now nearly 23 years of age, we cannot do so. " Similarly in the case of Bhoop Singh v. State of U. P. 1989 L Cr R 245, the Hon'ble Supreme Court sustained the conviction of the appellant who had crossed the age of 18 years but quashed the sentence imposed on the accused and directed him to be released forthwith because the appellant was minor at the time of the incident. In this case also Bhoop Singh was convicted under Section 302,i. P. C. 15. Again in a case of Sri Kishan alias Pandi v. State of U. P. 1992 SCC (Crl) 42, the Hon'ble Supreme Court after considering the provisions of the Children Act took a view that accused cannot be sentenced to imprisonment but looking into the nature of case released him on probation and further imposed a fine of Rs. 2,000. 16. Similarly in the case of Riasat v. State of U, P. 1988 (25) ACC 377 : 1988 L Cr R 363, this Court while confirming the convicton of the appellant, quashed the sentence awarded by the Sessions Judge on the ground that the accused was child at the time of the incident. 17. On the other hand the Additional Government Advocate appearing on behalf of the State contended that the appellant be not permitted to raise the said plea for the first time before this Court, but we do not find any force in this contention. THE provisions of the U. P. Child Act clearly oust the jurisdiction of the Court for awarding a sentence of imprisonment or sending him to Jail if the accused was a child at the time of the incident. Article 39 of the Constitution of India also directs the State to formulate a policy in order to secure that children are given opportunities and facilities to develop in a healthy manner and that childhood and youth are protected against exploitation and against moral and material abandonment. Keeping in mind the above mentioned direction of the Constitution of India as well as the beneficial provisions of the Children Act, in our opinion, it would not be proper to hold that the accused cannot raise such a plea before this Court for the first time specially when evidence regarding age was available even at the time of trial. It is the duty of the Court also to look into the matter and to see whether the order of sentence can be passed or not. As pointed out, if the accus ed was a child at the time of the incident then the Court cannot award sentence of imprisonment or send him to prison In these circumstances, in our opin ion, we cannot refuse to extend the benefit of U. P. Children Act to the appel lant even in appeal for the first time if he was found to be below 16 years of age. THE Additional Government Advocate in support of his contention relied upon the case of Balbir Singh v. State, 1993 JIC 136, in which a Bench of this Court held that the benefit of the Juvenile Justice Act cannot be given to the accused as the point has been raised for the first time in appeal. THE Bench has also pointed out that the Juvenile Justice Act has been enacted after 8 years after the conclusion of the trial and, therefore, also the benefit cannot be given to tbe accused. However, the case of Balbir Singh (supra) is of no help to the appellant because in the Balbir Singh's case the provisions of the U. P. Children Act have not been considered. It may be pointed out here that the Juvenile Justice Act came into force only on 2-10-1987 whereas before this the Children Act was already in force in U. P. and in most of the Districts the Act was in force in 1962. Hence after 1962 the provisions of the U. P. Children Act were applicable in U. P. but the same were not considered by the Bench in Balbir Singh's case, hence in these circumstances the case of Balbir Singh is of no help. THE Hon'ble Supreme Court in a case of Gopinath Ghosh v. THE State of West Bengal, AIR 1984 SC 237, clearly held that such a plea can be raised for the first time even before the Supreme Court and further the Court is always reluctant to ignore or overlook the beneficial provisions of the Statute on the basis of the technicalities. THE relevant portion of the judgment is as under : "it was for the first time that this contention was raised before this Court. However, in view of the underlying intendment and beneficial provisions of the Act read with clause (f) of Article 39 of the Constitution which provides that the State shall direct its policy towards securing that children are given opportunities and facilities to develop in a healthy manner and in conditions of free dom and dignity a. d that childhood and youth are protected against exploitation and against moral and material abandonment, we consider it proper not to allow a technical contention that this contention is being raised in this Court for the fir t time to thwart the benefit of the provisions being extended to the appellant, if he was otherwise entitled to it. " 18. Another contention raised by the Additional Government Advocate is that in view of sub-section (j) of Section 33 a child of 12 years or upwards can be sentenced to imprisonment. Sub-section (j) of Section 33 of the U. P. Children Act runs as under : " (j) when the offender is child of twelve years of age or upwards by sentencing him to imprisonment. " No doubt sub-section (j) of Section 33 permit the awarding of sentence to a child who is 12 years of age or upwards and on a simple reading of Section 27 and sub-section (j) of Section 33 of the Act it appears that the provisions are conflicting with each other but if the same were read with the help of proviso to Section 27 then there will be no ambiguity. As pointed out above the proviso to Section 27 is an exception to the principle that a child cannot be sent to Jail. THE condition is that the child is of so unruly or of so depraved a character that he is not fit to be sent to an Appraved School or none of the modes in which he may be legally dealt with is suitable. Section 33 of the Act summarises the various modes of dealing with the children charged with offence. Hence keeping in mind the proviso to Section 27 the Legislature has mentioned this made also that a child of 12 years or upwards can be sent to Jail. In the light of the facts mentioned above if we read sub-section (j) of Section 33 of the Act with the aid of proviso to Section 27, then there will be no ambiguity or conflict in the provisons of the Children Act. 19. As pointed out above the point raised in this case has already been concluded by the decision of the Hon'ble Supreme Court hence, in these circumstances, in our opinion, awarding of sentence to appellant Sher Mohammad by the learned Trial Judge is act proper and is, therefore, liable to be set aside. Appellant Sher Mohammad has already crossed 28 years of age, hence he cannot be sent to the Approved School as provided under Section 29 of the U. P. Children Act and, therefore, the only course open is either to acquit him or to release him on probation in accordance with Section 33 of the U. P. Children Act. Looking into the circumstances and the nature of the case, in our opinion, appellant Sher Mohammad can be dealt with in accordance with sub-Section (e) or (g) of Section 33 of the Act by direct ing him to be released on probation and fine. In these circumstances we are of the opinion that in this case also appellant Sher Mohammad be released on probation alongwith a fine of Rs. 3,000 which shall be recovered from him and paid to the members of the deceased family. 20. In the result, the appeal of Sher Mohammad is partly allowed to the extent that while his conviction is confirmed, the sentence is set aside. He it directed to be released on probation of good conduct and we accordingly direct that appellant Sher Mohaoimad be released on probation of good con duct upon executing a bond to the satisfaction of the Sessions Judge, Lucknow, for a period of one year and further appellant Sher Mohammad shall pay a fine of Rupees three thousand (Rs. 3,000) which shall be recovered from him and shall be paid to the members of the deceased's family by the Sessions Judge concerned. Appellant Sher Mohammad is directed to furnish bonds within a period of two months and deposit the fiue within six months from the date of this judgment and order. Appeal partly allowed. .