Allahabad High Court
Harish Chandra And Ors. vs State Of U.P. on 29 November, 2002
Equivalent citations: 2003CRILJ2287
Author: M.C. Jain
Bench: M.C. Jain, Y.R. Tripathi
JUDGMENT M.C. Jain, J.
1. As many as 24 persons were tried in Sessions Trial No. 627 of 1983. State v. Harish Chandra and 23 others in the Court of 2nd Additional Sessions Judge, Bulandshahr. All of them came to be convicted and sentenced variously (as would appear from the discussion that follows) by judgment and order dated 18th July, 1984 passed by Sri Phool Singh, the then Presiding Officer, of the said Court.
2. 23 of them (Harish Chandra and 22 others) filed Criminal Appeal No. 1959 of 1984, whereas the 24th accused Shyamu son of Harish Chandra filed connected appeal No. 2036 of 1984.
3. There was another accused Ram Pal named in the F.I.R. but the chargesheet was not submitted against him.
4. Appellant Narena of Criminal Appeal No. 1959 of 1984 died during the pendency of the appeal. As such, the appeal abates so far as he is concerned. Therefore, presently, there are 22 appellants in criminal appeal No. 1959 of 1984 and appellant Shyamu in connected criminal appeal No. 2036 of 1984. The appeals having arisen out of the same judgment are being decided together.
5. The incident took place on 31st October 1982 at about 11.30 A.M. in village Lodhana, Police Station Jahangirpur, District Bulandshahr. The F.I.R. was lodged the same day at 1 p.m. by P W 1 Jai Prakash son of the deceased Buddha. The distance of the Police Station from place of occurrence was 5 Kms. Three persons lost life in this incident, namely, Devi Charan aged about 20 years, Buddha aged about 60 years and Shanti Devi wife of Buddha aged about 50 years. Nine persons on the side of the prosecution received injuries also in the incident. Injuries were sustained by four persons on the side of accused also, namely Hazari Lal, Pappoo, Har Prasad and Kunwar.
6. For the sake of facility and clarity, we think it proper to give below the details as regards the accused, their weapons, the deceased, injured on either side, details of ante-mortem injuries of the deceased arid of the injured as also the sentences passed against the accused persons.
Name of the accused appellants in Criminal appeal No. 1959/ 84 Weapon assigned Conviction under section Sentence Awarded
1. Harish Chandra DBBL Gun 148 I.P.C.
Rigorous imprisonment for 1 1/2years 302/149 I.P.C.
Life imprisonment.
307/149 I.P.C.
Rigorous imprisonment for 7 years. (Sentences to run concurrently)
2. Har Prasad Countrymade pistol "
"
3. Kunwar Pal Countrymade pistol "
"
4. Dev Dutt @ Devu Countrymade pistol "
"
5. Mahesh Chand Ballam "
"
6. Charan Singh DBBL Gun "
"
7. Virendra Singh Country made pistol "
"
8. Harkesh Ballam "
"
9. Raj Pal Lathi 147 I.P.C.
Rigorous imprisonment for one year 302/149 I.P.C.
Life imprisonment 307/149 I.P.C.
R.I. for 7 years (Sentences to run concurrently)
10. Rammu Lathi "
"
11. Chandra Pal Lathi "
"
12. Mahendra Lathi "
"
13. Kali Charan Lathi "
"
14. Raghubir Lathi "
"
15. Hira Lal Lathi "
"
16. Radhey Shyam Lathi "
"
17. Guru Dutt Lathi "
"
18. Ram Autar Lathi "
"
19. Bhajan Lal Lathi "
"
20. Kokaliya Lathi "
"
21. Narena (now- dead) Lathi "
"
22. Gangu Lathi "
"
23. Rameshwar Lathi "
"
7. Accused appellant Shyamu of criminal appeal No. 2036 of 1984 was allegedly armed with Ballam. He was convicted and sentenced as under :
Under section Rigorous imprisonment 148 I.P.C. ment for 1 1/2 years. Under Section 302 read with Section 149 I.P.C. Life imprisonment Under section 307 Rigorous imprisonment read with Section for 7 years. 149 I.P.C. (Sentences to run con currently). 8. DETAILS PERTAINING TO THE DECEASED. 1. Devi Charan.
Post mortem over the dead body of the deceased Devi Charan was done by PW7 Dr. O.P. Khatri on 1-11-1982 at 2 p.m. He was aged about 20 years. The following ante-mortem injuries were found on his person :
1. Multiple gunshot wound (six) in an area of 8" x 3" on the outer side of whole of left forearm back, measuring 0.2 cm x 0.2 cm x skin deep. No tattooing and scorching. No wound of exit found.
2. Multiple gunshot wound (25) in an area of 12" x 10" on the left side chest extending 2 below left nipple at 6'O clock position. Each measuring 0.2 cm x 0.2 cm. Some are muscle deep. Some are chest cavity deep. No tattooing. No scorching. No wound of exit present.
3. 3 gunshot wounds on the left side face in an area of 3' x 11/2", 2" below left ear, each measuring 0.2 cm x 0.2 cm x skin deep. No tattooing, no scorching, no wound of exit present.
4. 2 gunshot wounds in an area of 11/2" x 1/2" on the left gluteal region, 1" above iliac crest. No tattooing and scorching. No wound of exit present, each measuring 0.2 cm x 0.2 cm x skin deep, pellet felt and recovered.
As per the doctor, the cause of death was shock and haemorrhage due to the above injuries and the deceased had died one day earlier.
2. Buddha Post-mortem over the dead body of the deceased Buddha was conducted by the same Doctor who was about 60 years. The following ante-mortem injuries were found on his person :
1. Incised wound 21/4" x 1/2" x abdominal cavity deep on the epigastric region, vertically and obliquely placed, clean cut edges. No tailing, spindle shaped 2" above umbilicus at 12'O clock position.
2. Penetrating wound 11/2" x 1/2" x abdominal cavity deep oh the right side lower part chest 2" above subcoastal margin, vertically placed, clean cut edges going inwards medially. No tailing present. The doctor opined that the cause of the death was shock and haemorrhage as a result of that ante-mortem injuries. He had died one day earlier.
3. Shanti Devi Autopsy on the dead body of the deceased Shanti Devi was conducted by Dr. M.P. Agarwal on 3-11-1982 at 10 a.m. She was found to be aged about 50 years. He found the following ante-mortem injuries on her person :
1. Stab wound 1" below umbilicus in abdomen in midline, 11/2" x 1" x abdominal cavity deep. Loops and intestine omentum protruding out through wound.
2. Incised wound left hand inner side, 2" x 1/2" x muscle deep.
3. Incised wound left hand thumb on palmer side 3/4" x 1/4" muscle deep.
4. Incised wound top of middle finger of left hand 1/2" x 1/4" x muscle deep.
5. Incised wound right hand index finger middle, phalanx on palmer side 1/2" x 1/4" x muscle deep.
6. Incised wound right hand middle finger on back 1/2" x 1/4" muscle deep.
7. Incised wound of cut on left leg lower part 1" x 1/4" x muscle.
According to the Doctor, the deceased died due to shock and haemorrhage as a result of ante-mortem injuries.
It may also be stated that the deceased No. 3 Shanti Devi named above died on 1-11-1982 at 4 p.m. and earlier thereto her dying declaration was recorded.
9. Details of injured on the prosecution side.
The injuries of persons on the prosecution side other than the three deceased were examined on 31-10-1982 between 1.35 p.m and 5.15 p.m. by PW 8-Dr. S.C. Pandey, Medical Officer, S. S. M. J. Hospital, Khurja, Bulandshahr.
Following injuries were found on their persons :
1. Inder Pal Singh 9 lacerated wounds on face and shoulder and one mul-
tiple gunshot wound on neck and upper part of chest were found.
2. Satya Prakash 8 lacerated wounds.
3. Sant Singh 4 lacerated wounds.
4. Faqir Chand 6 lacerated wounds.
5. Mukut Lal 3 lacerated wounds.
6. Chandra Pal 8 lacerated wounds.
7. Ram Jas 4 lacerated wounds.
8. Tejveer Singh 6 lacerated wounds.
10. Injuries sustained by the persons on accused side The injuries of persons on the accused side were examined by the same Doctor, i.e., Dr. S.C. Pandey, Medical Officer, S. S. M. J. Hospital, Khurja, Bulandshahr on two dates as specified hereinbelow in tandem :
____________________________________________________________________ Name Date & time of Examination Injuries sustained
1. Har Prasad 31-10-1982 at 2.40 p.m. One lacerated wound and two contusions.
2. Kunwar Pal 31-10-1982 at 2.50 p.m. One lacerated wound two abrasions and one contusion.
3. Papoo 3-11-1982 at 11 p.m. 3 contusions and 2 traumatic swelling and one scabbed abrasion.
4. Hazari Lal 3-11-1982 at 11.30 p.m. 6 contusions and traumatic swelling.
________________________________________________________________________
11. Having set forth the broad essentials of the case, it would be proper to relate the facts. On the fateful day at about 11.30 a.m., the accused Harkesh son of Bhola started constructing cattle trough adjacent to the wall of the accused Satya Prakash. Satya Prakash resisted and raised objection to the construction of cattle trough adjacent to his wall. He complained of the matter to PW 2 Tejveer-Pradhan; PW 2 Tejveer thought it proper to resolve the dispute and called persons from both the sides. PW 1 Jai Prakash, informant. Mukut, Ram Jas, Indra Pal, Chandra Pal, Sant, Narendra, Kushal, Faqir Chand, Mahipal, Satya Prakash and others were collected in front of the Gher of Harkesh for Panchayat, from the other side, Harish Chandra and other accused persons assembled for the Panchayat over the issue. They were allegedly armed as detailed above. Harish Chandra accused, started exchanging hot words with Satya Prakash and he called upon his companions (other accused) to kill the persons on the prosecution side. Resultantly, all the accused persons attacked the members of the other side who had assembled to join the Panchayat and injured Indra Pal, Satya Prakash, Sant Singh, Faqir Chand, Mukut Lal, Chandra Pal, Ram Jas and Tejveer on the side of the prosecution (as detailed in the chart above).
12. Instantaneously, all the accused reached the Baithak of Devi Charan (deceased) nearby the Gher of Harkesh. There Harish Chandra accosted Devi Charan that he would be taught a lesson for the litigation started by him two years back. Harish Chandra and Har Prasad accused opened fire on Devi Charan. Harkesh wielded spear and Rajpal a lathi to assault Devi Charan, it, however, appears that Devi Charan did not receive any injury of such weapons as he received gunshot wounds only according to post mortem report. Devi Charan died on the spot.
The accused then reached the Gher of PW 1 Jai Prakash, son of Buddha deceased. There, spear blow was struck in the abdomen of Buddha. Jai Prakash's mother Smt. Shanti Devi rushed up to save her husband but she was also given spear blow. Harish Chandra also opened fire on Buddha. According to the prosecution, 15-20 shots had been fired by the accused persons. The accused persons ran away. Buddha staggered a little and died in the field of Sri Ram. As has been stated earlier, Shanti Devi died the next day and before that, her dying declaration was recorded.
13. As regards the injuries sustained by, the four persons on the accused side, the explanation that came forth from the side of the prosecution is that the persons from the prosecution side had resorted to brick batting in self-defence as per the statement of PW 2 Tejveer Singh Pradhan.
14. After investigation, chargesheet was laid and trial was, held which resulted in the impugned judgment. At the trial, the prosecution examined 13 witnesses out of whom PW 1 Jai Prakash, PW 2 Tejveer and PW 5 Satya Prakash were witnesses of fact. PW 2 Tejveer and PW 5 Satya Prakash were injured also. The rest were Doctors, Investigating Officer and other formal witnesses. Mention should be made with regard to PW 3 Dr. S.K. Agarwal in whose presence dying declaration of Smt. Shanti Devi was recorded. PW 11 Shashi Shekhar Singh was the Executive Magistrate who recorded the dying declaration of the deceased and he has proved the same.
15. The defence was of denial. The accused Harish Chandra stated in his statement under Section 313, Cr.P.C. that Harkesh was constructing cattle trough by the side of his wall and Satya Prakash never resisted him from doing so. He also raised the plea of alibi. Har Prasad gave forth the defence story that he along with Pappoo. Hazari and Kunwar Pal was sitting in the Nohra of Harkesh. 14-15 others namely, Satya Prakash, Mahavir, Mahipal, Devi Charan, Buddha, Mukut and others came over there and asked for providing passage to them. He refused to oblige them. Then they started assaulting them with spears and guns with which they were armed. Thus, they caused injuries to the persons on the accused side. Pappoo took out a gun from his house and in private defence fired from that gun. Hazari repelled the attack with spear and Shanti Devi came in between and received injuries, Buddha and Devi Charan also received injuries in the scuffle. Later on, the injured left the Gher of Harkesh but blood from their injuries fell down in the Gher and there was trailing of blood throughout the passage from which these persons (on prosecution side) ran away. The remaining accused denied the prosecution story and pleaded false implication. Accused Chandra Pal also took the plea of alibi, saying that he was on his duty, Kunwar Pal accused also stood by the version given by Har Prasad.
16. The appellants also examined DW 1 Constable Ram Bhool Singh to prove a copy of the Chik report on the basis of an application of one of them and the related entry in general diary. D.W. 2 Pappoo was also examined in support of defence version as disclosed by Har Prasad in his statement under Section 313, Cr.P.C.
17. We have heard learned counsel for the appellants in the two appeals and learned A.G.A. from the side of the State in opposition thereof. Sri P. N. Mishra advanced arguments on behalf of the appellants Devdutt, Mahesh Chand, Virendra, Chandra Pal and Kali Charan, Sri A.D. Prabhakar also advanced arguments on behalf of the accused Mahendra, Raghuveer, Hira Lal, Radhey Shyam, Guru Dutt, Ram Autar and Bhajan Lal. The arguments on behalf of the remaining appellants have been advanced by Sri G.S. Chaturvedi. The substance of the arguments advanced on behalf of the learned counsel for the appellants is that the injuries of the accused are not explained, none sustained, any injury of lathis though as many as 15 accused allegedly wielded the same; the entire assembly could not be deemed to be unlawful assembly because initially it was lawful with a lawful purpose to settle the dispute and that the evidence from the side of the prosecution is unreliable and is not sufficient to warrant conviction.
18. In the present case, it is very important to ascertain as to what was the genesis of the incident and as to how it started. The case and the evidence of the prosecution is that when the accused Harkesh started constructing a cattle trough, Satya Prakash on the prosecution side resisted him and raised objection. The perusal of the site plan prepared by the Investigating Officer shows that the Gher of Harkesh is adjacent to the house of Satya Prakash. Satya Prakash also complained of the act of Harkesh to Tejveer, who was the Pradhan of the village. Tejveer, in his turn, being Pradhan of the village initiated action by convening a Panchayat with such persons of either side, who could matter (sic) to resolve the dispute amicably. We note that Harkesh accused in his statement under Section 313, Cr.P.C. admitted that he had started constructing a cattle trough, but he denied that Satya Prakash had raised objection. The act of construction of cattle trough being admitted to (by) him, it cannot be accepted that Satya Prakash did not object to it, regard being had to the topography of the Gher and the house of the two. It has also to be kept in mind that it was Satya Prakash who had made a complaint to Tejveer, Pradhan, being aggrieved by the act of Harkesh accused. So, the initial purpose of the assemblage of persons of both the sides was lawful as it was a Panchayat to amicably resolve the dispute. The presence of persons of either side who could be supposed or expected to take part in the deliberations of the Panchayat to arrive at a just decision was natural and lawful also. However, a little later, heat generated in the deliberations of Panchayat when Harish Chandra accused lost his cool and upturned his spleen on Satya Prakash, hurling abuses and exhorting the persons who had assembled in the Panchayat from his side for violence. At that juncture, a small group carved out with the common object to overawe, subdue and prevail over the other side by use of force. That small group really formed the unlawful assembly with such common object and it was in the prosecution of the common object of such unlawful assembly of small group that the incident took place in which three persons were murdered and as many as 8-9 others sustained injuries. The entire incident of violence which took place thereafter was the part of the same transaction occurring in same continuation and during short duration. Others who had assembled in the Panchayat for deliberations in the hope of finding out an amicable solution of the dispute could only be the helpless spectators of the happening around after a smaller group having become violent with the formation of an unlawful assembly with the common object of having an upper edge on the other party by resorting to violence and use of weapons.
19. Naturally, the evidence on record has to be examined with caution in the light of attending circumstances to determine as to who were really the persons of the smaller group who formed the unlawful assembly. It is to be pointed out that specific role has been assigned to the accused Harish Chandra and Har Prasad in shooting down Devi Charan. Harish Chandra was armed with a gun and Har Prasad had a countrymade pistol. As perusal of the post mortem report of Devi Charan shows that he had received multiple gunshot wounds detailed as ante-mortem injuries No. 1 to 4 in his post mortem report over left forearm, chest, left side face and gluteal region. Harish Chandra is the brother of Harkesh. Accused-appellant Shyamu is the son of Harish Chandra and being closely knit, he, too, had a strong motive to be the member of the unlawful assembly: It would be recalled that the root of the matter was the construction of cattle trough by Harkesh. Harkesh and Rajpal were armed with spear and lathi respectively and specific role has been assigned to them also that they wielded their weapons on Devi Charan, but he escaped without receiving injuries of these weapons. Rajpal is the son of Harkesh, Har Prasad has admitted also his presence in his statement under Section 313, Cr.P.C. That apart, he is an injured also having suffered a lacerated wound and two abraded contusions. It may be stated as a passing reference that these four accused Harish Chandra, Har Prasad, Harkesh and Rajpal being closely related obviously had a motive also to become the members of the unlawful assembly to espouse and back the cause of one of them (Harkesh), the background being that he (Harkesh) was constructing a cattle trough to which Satya Prakash had objected.
20. So far as the murder of Buddha and his wife Smt. Shanti Devi is concerned, an important piece of evidence (in addition to the evidence of three eye-witnesses PW 1 Jai Prakash, PW 2 Tejveer and PW 5 Satya Prakash) is the dying declaration of the deceased Shanti Devi dated 1-11-1982 in which she attributed the striking of spear blows to her and her husband to Shyam Lal (Shyamu) accused. She also stated in her dying declaration that Harish Chandra had also opened fire on her but she had escaped the shot. A look at the post mortem report of Shanti Devi reveals that she had received one stabbed wound in the abdomen and six other incised wounds. The post-mortem report of her husband Buddha reveals that he had sustained an incised wound on epigastric region and a penetrating wound on right side lower part of chest. These injuries were responsible for death of these two.
21. In all, six accused wielded firearms. They were Harish Chandra, Har Prasad, Kunwar Pal, Devdutt, Charan Singh and Virendra. The specific role of shooting dead Devi Charan is assigned to Harish Chandra and Har Prasad as stated a little earlier and there is consistent prosecution evidence in this behalf. Kunwar Pal is also an injured accused having suffered a lacerated wound, two abrasions and one contusion. Kunwar Pal himself admits his presence in his statement under Section 313, Cr.P.C. It is pertinent to find that though the prosecution case is that nine persons besides the deceased Devi Charan, Buddha and Shanti Devi received injuries in the incident, but there is no injury report of Narendra. Injury reports are there in respect of Indra Pal Singh, Satya Prakash, Sant Singh, Fakir Chand, Mukat Lal, Chandra Dal, Ram Jas and Tejveer. It is noted from their injury reports that all of them had received firearm injuries. It has specifically come in the testimonial assertion of PW 2 Tejveer that all the accused persons holding firearms had resorted to firing. It sounds to be consistent with medical evidence and is compatible therewith as eight persons named above sustained injuries of firearms on the prosecution side. Therefore, it is amply proved that the six accused holding firearms were the members of unlawful assembly and in prosecution of the common object of the same, they opened volley of shots. Kunwar Pal is the son of Harkesh and is well bracketed with the group forming unlawful assembly. It would be recalled that he is an injured also and his presence is, therefore, beyond question.
22. We note from the testimony of the eyewitnesses that none of the injured sustained any injury of lathi or spear. It is clear also from the perusal of their injury reports. The statement of PW 1 Jai Prakash is that he and others on his side had retreated a little and had, therefore, escaped from being hurt by lathis and spears. He also stated that when they retreated one or two paces, the accused holding spears and lathis did not advance towards them and just kept standing. Mahesh Chand (besides Harkesh) had spear but he was also a helpless spectator after a small group of the assembled persons turned into an unlawful assembly. As many as 15 accused were allegedly holding lathis. Out of them, Narena has died. Out of the remaining 14, specific role has been assigned to Raj Pal son of Harkesh of attacking Devi Charan who, however, did not receive lathi injury. It may be stated at the risk of repetition that he being son of Harkesh-the prima actor of the entire episode, well had a reason and motive to join the unlawful assembly with his father, brother, uncle, cousin and few others. The remaining 13 accused, namely, Rammu, Chandra Pal, Mahendra, Kali Charan, Raghuveer, Hira Lal, Radhey Shyam, Gurudutt, Ram Autar, Bhajan Lal, Kokalia, Gangu and Rameshwar, holding lathis were simply helpless spectators and could not be deemed to be the members of the unlawful assembly when the matter is considered with judicious approach and in a dispassionate manner. Really speaking, the prosecution evidence in respect of these thirteen as also in respect of Mahesh Chand accused, holding spear is of a vague, general and ambiguous nature and is not at all sufficient to hold them to be guilty, branding them as the members of the unlawful assembly. The question of their sharing the common object of the unlawful assembly could not arise when they were not even the members of the same and had been caught in the web as they simply joined the Panchayat to take part in the deliberations when the assembly was lawful and the purpose was to find out an amicable, just and acceptable solution to the problem that had erupted between the two sides over the construction of cattle trough by the accused Harkesh and objection raised thereto by Satya Prakash on the prosecution side.
23. Devi Charan was shot dead by the shooting of Harish Chandra and Har Prasad. They and four others, namely, Kunwar Pal, Dev Dutt, Charan Singh and Virendra used firearms and opened shots indiscriminately, injuring eight other persons on the prosecution side. Their act of injuring eight persons on the prosecution side brings their criminal act under Section 307, I.P.C. read with Section 149, I.P.C. and all the members of the unlawful assembly are guilty of the same besides under Section 302, I.P.C. read with Section 149, I.P.C. for the murder of Devi Charan, Buddha and Shanti Devi by the members of unlawful assembly of which all of them were members, the murders having also been committed in prosecution of common object of unlawful assembly.
24. A short discussion is necessary as to the injuries sustained by the persons on the accused side, namely, Hazari Lal, Pappoo, Har Prasad and Kunwar Pal, mention with regard to which has been made a little earlier. We should point out that the prosecution has very well explained these injuries that consequent upon firing from the side of the accused, the persons on the prosecution side had hurled brick bats on the accused to defend them. Statement of PW 2 Tejveer Pradhan is there that they had taken shelter behind the stack of bricks and had thrown brick bats towards the accused in their self-defence. Almost to the same effect is the statement of PW 5 Satya Prakash. We note from the site plan prepared by the Investigating Officer that heaps of bricks had been found at two places. It makes sense otherwise also because the backbone of the incident was construction of cattle trough by Harkesh. Naturally, there must have been the collection of bricks with pieces. The injuries sustained by the accused were such as could have been sustained by brick batting. Therefore, the accused side cannot gain any point by complaining that the injuries sustained on their side had gone unexplained.
25. So far as the sending of report by the accused Harish Chandra to the Superintendent of Police Bulandshahr on 4-11-1982 (Ex. Kha-6) proved by D.W.1 is concerned, suffice it to say that it was simply a desperate attempt on his part to create a vague defence as a counterblast and we would not attach any importance to it. It is not at all capable of scoring any point in favour of the accused.
26. We should also state that the bald plea of alibi raised by the accused Harish Chandra and Chandra Pal in their statement under Section 313, Cr.P.C. unsupported by any evidence, has no value and cannot overshadow the satisfactory, convincing and clinching evidence adduced by the prosecution to prove their guilt.
27. We are also not prepared to attach any importance to the testimony of DW 2 Pappoo son of Harish Chandra who gave his age as 16-17 years at the time of the recording of his statement on 7-5-1984. Supporting the defence, he stated that having been injured at the hands of the prosecution side, he brought the gun of his father and opened 3-4 shots. What seems to be the truth is that being, the son of Harish Chandra, he was also present at the spot and sustained injuries because of the brick batting resorted to by the persons on the prosecution side. But the defence side has concocted a cook and bull story assigning the role of shooting to this lad who could be less than 16 years at the time of the incident in the vain attempt of making a dent in the prosecution case which is proved to the hilt to the extent as we have found above.
28. Sri G.S. Chaturvedi who has inter alia, argued Appeal No. 2036 of 1984 on behalf of Shyamu has advanced an argument that he was aged about 15 years at the time of incident and even on being found guilty, he cannot be sentenced to imprisonment. We have waded through the record and find that his statement was recorded under Section 313, Cr. P. C. on 4-4-1984. Therein he disclosed his age as 17 years. The trial Judge has not made any remark, or observation to the contrary as regards his age. The incident took place on 31-10-1982. That means to say, he must have been aged about 151/2 years of age at the time of incident. Though the role of killing Buddha and Shanti Devi by causing spear blows is attributed to this accused/appellant Shyamu, but we find sufficient force in the argument of Sri Chaturvedi having regard to the provisions of the U.P. Children Act, 1951 which was in force at the relevant time when the incident took place. Section 2(4) of U.P. Children Act, 1951 (U.P. Act No. 1 of 1952) defines a child to mean, a person under the age of 16 years. Section 27 of the said Act says that notwithstanding anything contained to the contrary in any law, no Court shall sentence a child to imprisonment for life or to any term of imprisonment. Section 29 provide, so far 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 of the age of 18 years by the child. The Supreme Court has held in the case of Bhola Bhagat v. State of Bihar, AIR 1998 SC 236 : (1998 Cri LJ 390) that the benefit of Children Act should not be refused on technical grounds. In the instant case also, the benefit of Children Act should be afforded to the accused-appellant Shyamu. Though he was under 16 years of age at the time of this incident, but must be around 35 years presently. Therefore, he cannot be sent to an approved school now. The result would be that while maintaining the conviction of the accused-appellant Shyamu, we would not pass any sentence of imprisonment against him as he is entitled to the benefit of Children Act.
29. In the net result of the above discussion, we conclude as under :
The appeal stands abated in respect of the appellant Narena of Criminal Appeal No. 1959 of 1984, he having died.
Criminal Appeal Nos. 1959 of 1984 and 2036 of 1984 are partly allowed.
The conviction and sentences passed against the appellants; (1) Mahesh Chandra; (2) Rammu; (3) Chandra Pal; (4) Mahendra; (5) Kali Charan; (6) Raghveer; (7) Heera Lal; (8) Radhey Shyam; (9) Gurudutt; (10) Ram Autar; (11) Bhajan Lal; (12) Kokaliya; (13) Gangu and (14) Rameshwar are set aside. They are acquitted. They are already on bail.
The conviction of the appellants; (1) Harish Chandra; (2) Har Prasad; (3) Kunwar Pal; (4) Devdutt; (5) Charan Singh; (6) Virendra; (7) Harkesh, and (8) Shyamu; under Sections 148, 302 read with Section 149, I.P.C. and 307 read with Section 149, I.P.C. are maintained. The sentences of each of them, (except of the accused-appellant Shyamu), i.e., 11/2 years' rigorous imprisonment under Section 148, I.P.C., life imprisonment under Section 302 read with Section 149, I.P.C. and seven years' rigorous imprisonment under Section 307 read with Section 149, I.P.C. are also maintained. All the sentences shall run concurrently.
The sentences passed against the accused appellant Shyamu are quashed as he was a child as per the U. P. Children Act, 1951 at the time of the incident. He is on bail. He need not surrender.
The conviction of Raj Pal under Sections 147, 302 read with Section 149, I.P.C. and 307 read with Section 149, I.P.C. is maintained. His sentences to undergo rigorous imprisonment for one year under Section 147, I.P.C. life imprisonment under Section 302 read with Section 149, I.P.C. and seven years' rigorous imprisonment under Section 307 read with Section 149, I.P.C. are also affirmed. All his sentences shall run concurrently.
The appellants; (1) Harish Chandra; (2) Har Prasad; (3) Kunwar Pal; (4) Devdutt; (5) Charan Singh; (6) Virendra; (7) Harkesh and (8) Rajpal are on bail. They shall be arrested and sent to jail to serve out the sentences. Chief Judicial Magistrate, Bulandshahr shall report compliance within two months from the date of receipt of a copy of this judgment which shall be sent by the office forth with along with the record of the lower Court.