GUNESHWAR YADAV Vs. THE STATE OF BIHAR

JUDGEMENT

(1.) THE 11 appellants have filed this appeal against the judgment of conviction and order of varying sentences dated 04.04.1990 as passed against them by the Additional District & Sessions Judge, Banka in Sessions Trial No. 208 of 1983/224 of 1990. Appellant -Guneshwar Yadav has been found guilty of an offence punishable under Sections -302 and 148 of the Indian Penal Code (hereinafter in short 'IPC'). He has been sentenced to rigorous imprisonment for life and rigorous imprisonment for 3 years respectively and sentences were ordered to run concurrently. Appellant -Baleshwar Yadav and appellant -Basudeo Yadav, both having been convicted under Section -147 IPC simpliciter , have been released on probation of one year considering their age. Appellant -Chhagu alias Chhanguri Yadav has been held guilty under Section -148 IPC and sentenced to 2 years rigorous imprisonment. The rest of the appellants have been found guilty under Section -147 IPC and sentenced to one year rigorous imprisonment as such.

(2.) IT may be mentioned that the appeal so far as appellant -Kailash Yadav alias Punni Yadav, appellant -Siban Yadav and appellant -Basudeo Yadav stands abated as consequence of their death. It may be noticed that originally there were 12 accused persons. One Kailash Yadav, though was tried, he has been acquitted by the Trial Court itself. It may also be noticed here that in the memo of appeal itself it has been urged that so far as appellant -Panchi Yadav is concerned, he was undisputedly much less than 18 years at the time when the offence is said to have been committed and as such in terms of the Juvenile Justice (Care and Protection of Children) Act, 2000 and in particular Section -21 thereof, even if he is found to be guilty, cannot be sentenced. Upon examination of records, we find that the submission is not without merit. The Trial Court itself has assessed his aged to be 22 years when his statement was recorded under Section -313 Cr.P.C. and, taking that into account, he would be about 16 years of age when the offence is said to have committed. We need not want to go in this aspect in view of the order that we propose to pass.

(3.) BEFORE proceeding further, we may note that apparently in order to overcome this deficiency, the Court permitted the prosecution to examine one Md. Sakoor, an Advocate's Clerk to prove the case diary to the extent written by the said Investigating Officer, which was marked as Ext.6. We have repeatedly held that this is totally impermissible. This "Sankatmochan witness" who has nothing to do with the case could not and ought not to have been permitted to take the stand and that too to exhibit and prove the case diary, which is then marked as exhibit and used as evidence. This is contrary to Sections -162(2) & 172(2) Cr.P.C. The sooner this practice is given up by the Trial Court better it is.