PREM Vs. STATE OF M P

JUDGEMENT

(1.) The appellants Prem and Bairam have been convicted under section 302 read with section 34 I.P.C. and each sentenced to imprisonment for life for committing murder of Laxman Keer. Deceased Laxman Keer was living with the wife Gangabai (P.W. 5) in village Namsadiya tahsil and district Hoshangabad. On the date of the incident, i.e. 17/8/1982, the deceased had gone out of his house and was returning at about 4.30 p.m. when he was chased and beaten with Lathis by these two appellants. As a result, he fell down near the gate of his house. Hearing the alarm his wife Gangabai came out of the house and other villagers also collected there. The deceased was taken to the police station Hoshangabad where report Ex. P-10 was lodged by Gangabai. The deceased was admitted to the district hospital and was examined by Dr. Dilip Nagar (P.W. 3). He found three lacerated wounds on the skull and one lacerated wound on the lower lip. There was fracture of the skull and his condition was serious. These two appellants were arrested on 18/8/1982 and the appellant No. 1 Prem gave a memorandum (Ex. P-14) and then recovered a blood stained lathis vide Ex. P-3. Appellant No. 2 Balaram produced a blood stained lathi which was seized as per seizure memo (Ex. P-4). The deceased died on the morning of 21/8/1982. After holding inquest over the dead body was sent for post mortem examination. Dr. V.S. Dube (P.W. 8) after doing the autopsy opined that the deceased died due to coma and respiratory failure caused by injury to bead fracture of the skull and bleeding and laceration of brain tissue. The blood stained articles were sent for chemical examination and the Chemical Examiner vide report (Ex. p. 20) found presence of blood in both the lathis while the Serologist vide report (Ex. P21) could not detect the origin as the same had disintegrated. On completing the investigation, two appellants were charge-sheeted for the murder. Their defence was of denial. According to appellant No. 1 Prem, he had a quarrel about one Sword and he has been falsely implicated. According to appellant No. 2 Balaram, he was grazing the cattle of the deceased who did not pay him his dues in spite of demands and so he bas been falsely implicated. Relying on the statements of eyewitnesses, corroborated by the F.I.R. and the medical evidence, both the appellants have been convicted and sentenced as mentioned earlier.

(2.) According to the learned counsel for the appellants, appellant No. 2 Balaram was below 16 years of age on the date of the incident and as such he could have only been tried by the juvenile court under the Bal Adhiniyam and as such his trial is vitiated; he also relied in a school certificate showing his date of birth to be 7/5/1968. He further submitted that there was a sudden quarrel over fishing and the intention was only to belabour the deceased and not to commit his murder, as there was no previous enmity since it is not proved out of the two appellants who caused the fatal injury, the offence at the most will be one under section 304 Part II I.P.C. According to the learned Panel Advocate for the State, there were fractures of the parietal and frontal bones, both the appellants came together armed with lathis, chased the deceased and assaulted him in front of his house causing the fatal injuries; both of them are equally liable as the offence was committed with prior comfort and prearranged plan to commit the murder.

(3.) Regarding the question as to whether the trial has been vitiated because appellant No. 2 Balaram was below 16 years of age when the incident took place on 17/8/1982 and also when the challan was filed on 8/11/1982 against him before the committal Magistrate, the learned counsel contended that appellant No. 2 Balaram was below 16 years of age and for this purpose he wanted to produce his school leaving certificate. The Govt. Advocate also took time to verify his actual age when the appeal came up for hearing on 13/8/1986. On 25.8.1986 on the request of the parties we sent for the record of bail application No. 827/82 decided on 22/11/1982 by the Sessions Judge, Hoshangabad granting bail to this appellant because of his immature age. In the record of that case there is a school leaving certificate or Vidya Mandir Pradhmik Shala Nimsadiya showing the date of birth of appellant No. 2 Balaram to be 7/5/1968. The Sessions Judie In the bail order has mentioned that when this appellant was produced before him, he estimated his age to be below 16 years and this was evident from the school leaving certificate. Therefore bail was granted. No evidence to the contrary has been produced. Therefore, we hold that appellant No. 2 Balaram was below 16 years of age when the incident took place and when the challan was filed in the case. Under section 19 of the MP Bal Adhinlyam. 1970 where a child having been charged with an offence appears or is produced before a Juvenile Court, such court shall hold enquiry in accordance with the provisions of section 39 and may subject to the provisions of this Act make such orders in relation to the child as it deems fit. Under section 22 notwithstanding anything to the contrary contained in any other law for the time being in force, no delinquent child shall be sentenced to death or imprisonment or committed to prison. Under section 24 no child shall be charged with or tried for any offence together with a person who is not a child. Interpreting these provisions, the Supreme Court in Raghbir v. State of Haryana1 has held that an accused who is less than 16 years and who is accused of an offence under section 302 I.P.C. he is entitled to the benefit of the Children Act, therefore, his trial and conviction under the Criminal Procedure Code is illegal by overruling a Full Bench decision of this Court in 1978 Cri D.J. 585, which had held to be contrary. Therefore, the trial resulting in the conviction and sentence passed against appellant No 2 Balaram are vitiated. Accordingly the conviction and sentence passed against this appellant are set aside and it is directed that he be tried before the Juvenile Court at Hoshangabad under the M.P. Bal Adhiniyam.