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Ajoy Singh v/s State of Bihar


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    Criminal Appeal (SJ) 186 Of 1992, Criminal Appeal 210 Of 1992

    Decided On, 16 January 2007

    At, High Court of Bihar

    By, THE HONOURABLE MR. JUSTICE INDU PRABHU SINGH

    For the Appearing Parties: Vindhya Keshari Kumar, Rajana Sinha, Neeraj Kumar Alias Savid, Lala Kailash Behari Prasad, Advocates.



Judgment Text

INDU PRABHA SINGH, J.

(1.) Criminal Appeal No.186 of 1992 and Criminal Appeal No. 210 of 1992 arise out of the same judgment. They have been heard together and are being disposed of by this common judgment.

(2.) Both the appellants Ajay Singh and Ashok Singh have been convicted under Sections 304-Part 11/34 of the Indian Penal Code and were sentenced to undergo R.I. for five years each.

(3.) The prosecution case as disclosed on the basis of fardbeyan of the informant at about 2.00 a.m. in the early morning on 3.5.1989 is that the informant had settled marriage of his daughter Nilu Kumari with one Narendra Singh of District Chapra. Accordingly, barat reached his village in the previous evening and was staying in the building of Sanskrit Middle School. Thereafter barat party took their refreshment at the house of the informant and at about 8.00 p.m. they started back to 'Janbasa'. It has been alleged that two to three boys of barat were going behind them while the barat party was going to janbasa. The informant himself and Sitaram Singh, Punyadeo Singh. Kameshwar Singh, Devendra Singh and Chandeshwar Singh of the same village were also going. When these persons reached on the road by side of the pond which was to the north of that school they saw Ajay Singh and Ashok Singh both accused came from behind and overtook the informant and others going with him and started cutting jokes with those boys of the barat party who were going ahead. The boys of barat objected to the dirty talks at which it has been alleged that Ashok and Ajay started abusing and quarreling with them In the meantime, Ashok Singh caught hold of one boy of the barat and Ajay Singh took out a dagger from his waist and inflicted the dagger blow in the chest of the boy. The boy cried loudly and fell down on the earth at which both the accused fled away. The informant and others started lifting the boy and arranged for the doctor but the boy expired. The persons of the barat also came there from where they learnt that the name of the boy was Mukesh Kumar Singh. This occurrence took place in the night at 8.30 p.m.

(4.) On the basis of the fardbeyan on the informant the formal FIR was registered. The police started investigation and submitted charge-sheet. Accordingly, cognizance was taken and case was committed to the Court of Session for trial.

(5.) The appellants pleaded not guilty and have stated that they have been falsely implicated in this case.

(6.) The prosecution, in support of its case examined altogether five witnesses. PW1 is Punyadeo Singh, co-villager and eyewitness. PW2 is Laxmi Singh, co-villager and eyewitness. PW3 is Ram Niranjan Singh, the informant. PW4 is Dr. Manoranjan Kumar Srivastava and PW5 is Babulal Prasad, the I.O. of this case.

(7.) The defence has examined only one witness as DW 1, namely, Krishnadeo Singh. He has proved informatory petition filed by Baidyanath Singh, father of the appellant, Ajay Singh.

(8.) PW1 Punyadeo Singh co-villager claims to be the eyewitness of the occurrence. According to him at about 8.00 p.m. he was going to janbasa along with the informant. Laxmi Singh, Chandeshwar Singh. Sitaram Singh, Devendra Singh, Kameshwar Singh and Ganesh Singh and some other villagers to call those of barat party who had not taken their refreshment. He has also stated that the daughter of the informant was to be married with the grandson of Ganga Babu of District Chapra. According to him, the accused persons Ajay Singh, Ashok Singh. Siyaram Singh and Binod Singh were also going along with them with two boys of barat side, one was aged about 14 years and another was aged about 9 to 10 years old. He has also stated that when these two boys reached near the pond which was near the Sanskrit Middle School the accused started abusing these two boys. Thereafter, Binod Singh and Siyaram Singh ordered to kill them on which Ashok Singh caught hold of arm of the boy and Ajay Singh assaulted on the chest of one boy who was aged about 14 years with dagger. After receiving injury he fell down and the accused persons fled away. Thereafter barat party came and saw the occurrence and disclosed the name of the deceased as Mukesh Kumar Singh. He has also stated that the deceased Mukesh was the nephew of the bridegroom. He has also stated that after the occurrence barat party returned back without performing the marriage of the daughter of the informant. He has also stated that the generator was functioning and in the light of the generator he identified the accused persons.

(9.) PW 2 co-villager Laxmi Singh has also supported the case of prosecution. According to him, the barat party had gone back to the janbasa after taking refreshment, he along with others, whom he had named, including the informant were going to janbasa for requesting the rest of the baratis to take their refreshment. According to him, when they were going, ahead of them two boys of barat aged about 14 years and 8/9 years respectively were going and along with these two accused Ajay Singh and Ashok and their companions were also with them. He has stated that both the parties were cutting jokes and thereafter they started quarrelling with one another and upon this Siyaram Singh and Binod Singh ordered to kill him. Whereupon the accused Ashok Singh caught hold the arm of the deceased and Ajay Singh inflicted dagger blow in the chest of the deceased. He fell down and after sometime died. Thereafter all the accused persons fled away and while fleeing away the chappal and one cycle of the accused Ashok Singh were left.

(10.) PW 3, the informant Ram Niranjan Singh has fully supported the case of prosecution as stated in his fardbeyan. According to him, it was the time of the marriage of his daughter. The barat party had come and stayed at the Sanskrit Middle School in that village and at 7 p.m. barat had reached his house and the baratis had taken their light refreshment there but some baratis had remained in the janbasa and therefore they were going to request them to come and take their refreshment. He along with Laxmi Singh, Punyadeo Singh, Sitaram Singh, Devendra Singh, Kameshwar Singh and Ganesh Singh and some other villagers were going to janbasa. He has stated that the accused Ajay Singh and Ashok Singh were also going with them and the two boys of barati aged about 13/14 years and 9 years were also going with them. Thereafter they started cutting jokes and began to quarrel. He has stated that when they reached on the road near the pond, Siyaram Singh and Binod Singh shouted and ordered to kill him upon which the accused Ashok Singh caught hold of the arm of the deceased and accused Ajay Singh gave one chhura blow on his left side of the chest and the boy having received injury fell down and the accused persons fled away. The boy whose name was Mukesh died there. He has also stated that the marriage of his daughter was not performed and the barat party had returned back.

(11.) PW4 is Dr. Manoranjan Kumar Srivastava. He has stated that on 3.5.1989 at 11.30 a.m. he held the post-mortem examination on the dead body of deceased Mukesh Kumar Singh and found following ante-morten, injuries:

(1) Incised and punctured wound 1" x 1/2 x heart deep on the left side of the chest on mid-clavicluar line on fifth intercostals space. 11/2 lateral to the left nipple. On opening the chest, the heart was found punctured on its upper border with one pint of blood present in thorasis cavity. According to him, the cause of death was due to shock and haemorrhage due to the above mentioned injuries. The doctor opined that the injury was caused by a sharp pointed weapon which might be a dagger (chhuru).

(12.) PW5 Babulal Prasad is the IO of this case. He has stated that he reached the village of the informant in the midnight and recorded the fardbeyan of the informant and he put his signature over it. He started investigation and also examined the deceased Mukesh Kumar Singh and prepared the requisition of the deceased. On the place of occurrence he found one pair of plastic chappal and one Hiro Bicycle and also seized the blood stained soil and prepared seizure list. It has been marked as Ext. 6 Thereafter he again recorded the statement of the informant and inspected the place of occurrence. He has given vivid description of the place of occurrence. Thereafter he recorded the statement of the witnesses and he started to search the four accused persons. He found that they were absconding. After completion of investigation he-submitted charge-sheet.

(13.) It has been seriously contended, an behalf of the appellants, that in both these appeals the appellants were juveniles on the alleged date of occurrence and as such they should not have been convicted and punished in this manner by the trial Court. On behalf of the prosecution it has been contended that since this plea was not raised before the trial Court by the defence it cannot be raised here for the first time in the appeal. This point has, however, been well- settled by the Hon'ble Supreme Court in the case of Gopinath Ghosh v. The State of West Bengal, AIR 1984 SC 237. in which it was held that even if the pLea of minority is taken for the first time before the Supreme Court it has to be taken into consideration. Also in the case of Bhola Bhagat v. The State of Bihar, AIR 1998 SC 236: 1998(1) East Cr. C. 735 (SC). it has been held that even if the plea of minority is taken for the first time before the High Court and if the High Court entertains any doubt the lower Court should be directed to hold an inquiry and to record a finding about the age of a juvenile. Under this circumstance I do not find any force in this plea of the prosecution which is rejected.

(14.) In this connection certain facts have to be noticed. The alleged date of occurrence is 2.5.1989. This is the relevant date to determine the juvenility of the accused as has been held by the Hon'ble Supreme Court in the case of Pratap Singh v. State of Jharkhand and another, (2005) 3 SCC 661. In this view of the matter it has to be determined whether the appellants, Ajay Singh in Cr. Appeal No.186 of 1992 and Ashok Singh in Cr. Appeal No. 210 of 1992 were juveniles on the alleged date of occurrence. It has to be noticed that on 2.5.1989 (the alleged date of occurrence) the Juvenile Justice Act, 1986 (in short the Act of 1986) was in enforce. As per this Act a juvenile was defined in Section 2(h) as a boy under 16 years of age or a girl under 18 years of age. This Act had come into force on 2.10.1987. Subsequently this Act was replaced by the Juvenile Justice (Care and Protection of Children) Act, 2000 (in short the Act of 2000) which came into force on 1.4.2001. As per this Act its Section 2(k) describes a juvenile as a person who has not completed 18 years of age. It is well settled that the Act of 2000 is not retrospective in nature which will also become clear from its Section 20 which makes provision for pending cases. It provides that even in pending cases the Act of 1986 will apply as if the Act of 2000 had not come into force. In the case of Lallan Singh v. The State of U.P. and another, 2000 Cri. LJ 1242 SC it has clearly been held by the Hon'ble Supreme Court that if any proceeding is pending on the date of enforcement of the New Act, that proceeding shall be concluded under the provisions of the Old Act. From this it is clear that Act of 2000 is not retrospective in nature. In the present case, however, no proceeding was pending on 1.4.2001 when the Act of 2000 came into force. Hence it is clear that the Act of 1986 shall apply to the present case. As per this Act, if male, ajuvenile is a person under 16 years of age.

(15.) In this background it has to be found out whether two appellants were juveniles on the alleged date of occurrence or not. Both these appellants were examined under Section 313 of the Code of Criminal Procedure, 1973 (in short the Code) on 27.4.1992. As per their statements appellant Ashok Singh has stated his age to be 20 years but the Court had estimated his age to be 23 years on this date. Similarly the appellant, Ajay Singh, has disclosed his age to be 21 years but in the estimation of the Court he was aged 24 years. Thus, as per their own statements on the alleged date of occurrence, namely, on 2.5.1989 their age will be about 17 and 18 years respectively. Hence it is clear that on the alleged date of occurrence they were not juvenile and, therefore, they could not have been covered under the Act of 1986. It appears that under this circumstance the trial Court did not think it fit to examine this aspect of the matter as to whether the protection of Act of 1986 can be extended to them since none of these two appellants were juveniles on the alleged date of occurrence. From this it appears that the trial Court has rightly not extended the benefits of Act of 1986 of them. Thus, I do not find any force in the contention of the learned counsel for the appellants to the contrary.

(16.) Learned counsel appearing on behalf of the appellants in both these appeals has submitted before me that the trial Court has not applied the provisions of Section 360(1) of the Act. Also it has been submitted that the provisions of Section 361 of the Code have also not been complied with in the present case. On this ground it has been submitted that the impugned judgment of conviction of the appellants be set aside.

(17.) In this connection on behalf of the respondent my attention has been drawn to the offences under Part II of Section 304 of the Indian Penal Code under which the appellants have been found guilty and convicted. The offences under Part II of Section 304 of the Indian Penal Code are punishable with imprisonment for 10 years or fine or both. In this connection a reference may be made to Section 360 of the Code according to which when any person not under 21 years of age is convicted of an offence punishable with fine only or with imprisonment for a term of 7 years or less he may be released on his entering into a bond to appear and to receive the sentence during a period not exceeding three years and in the meantime to keep the peace and be of good behaviour.

(18.) From Section 360 of the Code it is clear that the relevant date for its application is the date when a person is convicted. I have already noticed above that on the date of the examination of the appellants under Section 313 of the Code in the estimation of the Court the appellant, Ashok Singh was aged about 23 years and appellant, Ajay Singh was aged about 24 years though as per their own statements they were aged 20 years and 21 years respectively. This statement was recorded on 27.4.1992. On behalf of the prosecution it has been submitted that the age of the accused to be taken into consideration for the purposes of Section 360 of the Code would be the age as. per the estimation of the Court and not as per the statements made by the accused persons themselves. It has been submitted that if the statement of the accused persons themselves would be taken into consideration as the correct statement of their age this may lead to complications as statements under Section 313 of the Code are not made under oath. For the obvious reasons, in order to attract the provision of Section 360 of the Code the accused could disclose their age to be under 21 years so as to attract its provisions. However, the prosecution has submitted that if this is allowed to happen then it would be very difficult to come to the correct conclusion whether or not a case is covered under Section 360 of the Code. Under the circumstance it has been pointed out that the proper course left open to the Court would be to be guided by the estimation of the Court with respect to the age of offender. Hence I do not think that the provisions of Section 360 of the Code are attracted. This being the position the provision of Section 361 of the Code also will not be attracted.

(19.) Learned counsel for the appellants has seriously contended that since both these appellants were minors on the alleged date of occurrence they should have been given protection of Section 6 of the Probation of Offenders Act, 1958 (in short the Act) and should not have been sentenced for imprisonment. In this connection he has placed [reliance on the case of Daulat Ram v. The State of Haryana, AIR 1972 SC 2434. No doubt in this case its paragraph 5 it has been held as follows: "5. It is obvious that Section 6 places restrictions on the Court's power to sentence a person under 21 years of age for the commission of offences mentioned therein unless the Court is satisfied that it is not desirable to deal with the offender under Sections 3 and 4 of the Act. The Court is also required to record reasons for passing sentence of imprisonment on such offender. Section 11 of the Act empowers the Courts of appeal and revision also to make order under the Act. In Ramji Misser v. State of Bihar, (1963) Supp. (2) SCR 745: AIR 1963 SC 1088 this Court laid down: (1) the age referred to in Section 6 of the Act is that when the Court is dealing with the offender. That being the point of time when the Court has to choose between the two alternatives, whether to sentence the offender to imprisonment or to apply to him the provisions of Section 6(1) of the Act.

(20.) From this it would appear that crucial date in this connection would be the date w

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hen the Court proceeds to pass sentence on the offenders. In the present case the judgment was passed on 27.7.1992 and the sentence of rigorous imprisonment of five years each was also awarded to them on the same day for an offence under Part II of Section 304 of the Indian Penal Code. On that date in the estimation of the Court the appellant, Ashok Singh was aged about 23 years and appellant, Ajay Singh was aged about 24 years though in their statements recoded under Section 313 of the Code they had disclosed their age to be 20 and 21 years respectively. They were, however, free to disclose whatever age they desire in those statements which were not made on oath. Hence for this purpose the Court will be guided by its own estimate specially when no plea to the contrary was raised on behalf of the appellants. (21.) Now coming to Section 6(1) of the Act it is clear that its provisions are attracted only when the offender is under 21 years of age. As noticed about the age disclosed by the offenders in their statements made under Section 313 of the Code (not made on oath) may be for obvious reason and as such in such a situation the Court is to be guided by its own estimate. It is only in the case of any doubt about the juvenility of the offender that the Court is required to call for a report from the Probation Officer. From the judgment under appeal it does not appear that the Court entertained any doubt in this regard, specially when no such plea was raised on behalf of the appellants. Hence it is clear that Section 6 of the Act will not be applicable to the facts of the present case and, therefore, I do not find any merit in this contention of the learned counsel. (22.) From the detailed discussion made above, it becomes clear that there is no merit in these appeals. These two appeals are, accordingly, dismissed and the judgment of conviction passed by the learned Court below is confirmed. Appeals dismissed.
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