Allahabad High Court
Arvind & Others vs State Of U.P. on 19 December, 2018
Author: Sudhir Agarwal
Bench: Sudhir Agarwal
HIGH COURT OF JUDICATURE AT ALLAHABAD AFR Reserved on 25.09.2018 Delivered on 19.12.2018 Case :- CRIMINAL APPEAL No. - 298 of 1997 Appellant :- Arvind & Others Respondent :- State Of U.P. Counsel for Appellant :- Apul Misra, Raghuvansh Mishra, Rahul Mishra Counsel for Respondent :- Govt.Advocate Hon'ble Sudhir Agarwal,J.
Hon'ble Om Prakash-VII,J.
(By Om Prakash-VII, J.)
1. This criminal appeal has been preferred by accused appellants against judgment and order dated 7.2.1997 passed by 2nd Additional District & Sessions Judge, Jhansi in Session Trial No. 214 of 1991 (State vs. Arvind and others) convicting and sentencing appellants for the offence punishable under Section 302 IPC read with Section 149 IPC to undergo imprisonment for life and for the offence under Section 147 IPC for three months rigorous imprisonment. All sentences have been directed to run concurrently.
2. Facts of case, in nutshell, as unfolded by informant Rameshwar Prasad son of Laldiman Nayak in the First Information Report (in short 'F.I.R.'), are that on 4.10.1990 at about 9:00 a.m. his son Ayodhya Prasad had gone to graze cattle at haar (field) of village Nagra. One Arvind Nayak of said village went to his son and asked him to go with him to the village. On this, his son asked Lakhan Lal and Achhe Lal, who were also grazing their cattle, to see his cattle also and accompanied Arvind to visit village Nagra. Informant and his other son were going from village Nagra to their field and when at about 2.00 p.m. they reached near culvert Garha Ghat they saw that his son Ayodhya Prasad was being beaten by Arvind, Jay Prakash, Jeetu, Madan and Dinesh with fists and slaps. When informant and his son tried to save him, accused exhorted to kill them. With these words, they pressed face of informant's son in mud of culvert for a long time, consequently his son Ayodhya Prasad died due to suffocation. After the incident, accused fled away towards Varampura leaving his son in dead condition. Since Arvind had illicit relations with the daughter of Thakur Das and Ayodhya Prasad had disclosed their relations in village, accused have caused the incident due to said reason. Dead body was lying on the spot.
3. On the basis of the written report (Ext. ka-1), chik First Information Report (Ext. Ka-10) was registered at Police Station concerned on 4.10.1990 at 4.00 p.m. mentioning all details as had been disclosed in Ext. Ka-1. G.D. entry was also made at the same time as Ext. ka-11.
4. Investigation of the matter was taken into hand by Arjun Singh Yadav, who was posted as Station Officer of police station concerned. He proceeded to place of occurrence. Prepared inquest report (Ext.ka-2). Investigating Officer also prepared other police papers, namely, photo lash, report for post morterm, report regarding sealing of clothes of deceased, challan lash, sample seal as Ext. ka-3 to ka-7. He also recorded statement of witnesses. Prepared site plan Ext. ka-8. Sealed the body in a peace of cloth and preparing sample seal deputed constable Ram Kripal Anuragi to take the dead body along with relevant papers for post-mortem.
5. Post-mortem on the dead body of deceased was conducted on 5.10.1990 at 01:40 p.m. Autopsy report is Ext. Ka-10 (due to clerical mistake again Ext. ka-10 has been numbered on post mortem report) As per post mortem report, deceased was average built male. Both eyes closed. Mouth semi opened. Rigor mortis present on both upper and lower extremities. Membranes and brain congested. Right side heart full of pressure and left side empty. Large veins gorged with blood. Right lung distended like balloon over lap the heart. Left lung pit on pressure with finger. On section exude a frothy blood stained large quantity of fluid. On examination following ante mortem injuries were found.
"(i) Multiple abrasion in the area 9 cm x 5 cm on front and outer aspect of right side of neck, 4 cm below from right ear from smallest 0.5 cm x 0.5 cm to largest 1.5 cm x 1 cm."
6. In the opinion of doctor, cause of death was asphyxia due to drowning.
7. After completing investigation, charge-sheet (Ext. ka-9) against all accused was filed. Concerned Magistrate took cognizance and case being exclusively triable by sessions court was committed to Court of sessions.
8. All accused appellants appeared and charge under Sections 147, 302 read with Section 149 IPC was framed in the trial court against them. All accused denied the charges and pleading not guilty claimed their trial.
9. Trial proceeded and on behalf of prosecution, six witnesses, namely, PW-1 Lakhan Lal, PW-2 Rameshwar Prasad (informant), PW-3 Ram Gopal, PW-4 Sub-Inspector Arjun Singh, Investigating Officer, PW-5 Dr. P.C. Jain, who has conducted post mortem on the body of deceased and prepared autopsy report and PW-6 Constable Ram Kripal Anuragi, were examined.
10. After closure of prosecution evidence, statement of accused appellants under Section 313 CrPC was recorded in which they denied prosecution case. They also stated that they have been falsely implicated in this case. Witnesses have deposed false statement due to village parti-bandi.
11. In defence, accused did not lead any oral evidence but filed documents, namely, copies of khasra, khatauni and jot chakbandi aakarpatra as Ext. kha-1, kha-2 and kha-3 in support of their case.
12. Trial court has found that prosecution has fully succeeded in bringing home the charges against accused appellants beyond reasonable doubt and convicted and sentenced accused appellants, as mentioned above. Hence this appeal.
13. We have heard Shri Rahul Mishra, Advocate assisted by Shri Ashwani Tripathi, learned counsel for appellants and Shri Rishi Chaddha, learned A.G.A. appearing for State at length.
14. Castigating impugned judgment and order, learned counsel for the appellants submitted that medical evidence does not support prosecution case. Symptoms found on the body of deceased during post mortem could only come by smothering. In fact deceased was done to death in wee hours. Dead body of deceased was found in the drain thereafter concocting prosecution story, F.I.R. was lodged on the basis of enmity. At this juncture, learned counsel for appellants also referred to contents found during post mortem in stomach and intestines of deceased and submitted that these facts also indicate that some unknown person has committed murder of deceased in wee hours itself. F.I.R. is an ante-timed document. In support of this submission, learned counsel for appellants referred to inquest report and other police papers. It was next contended that PW-2 and PW-3 are chance witnesses. They had not seen the incident and due to that reason major contradictions occurred in their statements on material points. Referring to statements of PW-2 and PW-3, it was also submitted that conduct of these witnesses places them in the category of unreliable witnesses, as deceased was being beaten and done to death by accused but they were standing as spectator. It was also submitted that five persons were pressing the deceased into mud but no injuries have been found on his body. It was further submitted that PW-2 left the place of occurrence leaving his son PW-3 alone at that place. Referring to statement of PW-1 it was next contended that he is interested witness. Conduct of this witness also shows that he has made false statement before Court. If deceased had gone to place of occurrence before this witness leaving his cattle and on receiving information from PW-2 about murder of deceased, PW-1 did not go to place of occurrence but remained present till evening at the field where cattle were said to be grazing. Even PW-1 did not go to the place of occurrence in the evening after returning from field. Thus, conduct of PW-1 itself makes the prosecution story doubtful. Chain of circumstances is also not established firmly and cogently. Prosecution was also not able to establish the reason for which PW-2 and PW-3 were going to their field for collecting Urd crop as they had no field in that area. In support of this submission learned counsel for appellants drew attention of Court towards site plan. It was next contended that investigation in this matter is perfunctory. Motive is also not established. It was also submitted that prosecution did not specify role of each and every accused. Findings recorded by trial court in the impugned judgment and order are not based on correct appreciation of evidence and impugned judgment and order suffers from infirmity and illegality warranting interference by this Court.
15. In reply, learned AGA submitted that prosecution was able to prove this fact beyond reasonable doubt that deceased was taken by accused Arvind from the field where he was grazing cattle along with PW-1 at about 01:00 p.m.. PW-2 and PW-3 were going to collect Urd crop and when they reached near place of occurrence they saw accused appellants committing present offence. Referring to contents of post mortem report, it was next submitted that cause of death of deceased is clear which took place due to drowning. There was sufficient water in the drain to press the face of deceased in the same. If PW-2 and PW-3 did not react on the spot to save the deceased, their presence on the spot cannot be doubted as villagers used to go to collect crop from their field in day hours. If PW-2 went to village leaving PW-3 at the place of occurrence all alone to look-after dead body of deceased, his conduct is not unnatural or improbable. Medical evidence fully supports oral version. PW-2 and PW-3 cannot be termed to be chance or interested witnesses. F.I.R. is not ante-timed document. Minor discrepancies occurred in the inquest report and other police papers are not sufficient to disbelieve the statements of PW-1, PW-2 and PW-3. Laches on the part of Investigating Officer are also not fatal to prosecution case. If site plan of the place, from where deceased was taken by accused Arvind, was not prepared, same is not sufficient to disbelieve the prosecution case. Findings recorded by trial court in the impugned judgment and order are based on correct appreciation of evidence and do not suffer from any infirmity or illegality warranting interference by this Court.
16. We have considered rival submissions made by learned counsel for parties and have gone through entire record carefully.
17. At the outset, it may be mentioned here that appellant no. 4 Jeetu has died and vide order dated 24.1.2017 appeal against him has been abated. Further, accused appellant no.5 Dinesh pleaded juvenility during pendency of this appeal and on the direction of this Court an enquiry was conducted in this regard by the Juvenile Justice Board concerned and finding him juvenile, he was declared as juvenile in conflict with law. Neither objection has been filed nor there is any appeal against said order dated 25.1.2018 passed by concerned Juvenile Justice Board, as has been stated by learned AGA. Thus, in regard to conviction and sentence of accused appellant no.5 Dinesh, Court will discuss the matter in accordance with law in later part of this judgment.
18. Now Court proceeds to deal with submissions raised by learned counsel for parties.
19. First of all we take up medical evidence.
20. In this regard, we have perused the entire evidence minutely to ascertain date, time and cause of death of deceased. In the F.I.R. it has been mentioned that accused persons pressed the deceased from face side in the muddy water of drain (Nala) for a long time resulting death of deceased. Post mortem report indicates that cause of death of deceased as asphyxia due to drowning. Multiple abrasion in an area of 9 cm X 5 cm on in-front and outer aspect of right side of neck 4 cm below from ear were also found. Prosecution case is also that accused persons were beating deceased with fists and slaps. PW-5 Dr. P.C. Jain, when examined before court on oath, has specifically stated that no injury was found on the back side of head of deceased. He has also stated that in the facts and circumstances of the present case, injuries could also not come on the back side of deceased by pressing him in the muddy water. PW-5 has also found muddy water in the stomach of deceased but he has not disclosed in the post mortem report that there was mud on the clothes of deceased also. Faecal matter were found present in the large and small intestines. Referring to contents of intestines, learned counsel for appellants contended that these materials could only be found in the intestines if deceased was done to death in wee hours of 04.10.1990. We have analyzed these submissions of learned counsel for appellants on this issue.
21. As far as faecal matter and gases found in the intestine is concerned, it is settled that presence of semi digested food in the stomach of deceased is not conclusive in itself for determining time of death. The state of contents of the stomach found at the time of medical examination is not a safe guide for determining time of occurrence because that would be a matter of speculation, in the absence of reliable evidence on the question as to when the deceased had his last meal and what that meal consisted of. Further, presence of faecal matter in the intestines is also not conclusive, as the deceased might be suffering from constipation. Where there is positive direct evidence about time of occurrence, it is not open to court to speculate about the time of occurrence by the presence of faecal matter in the intestines. In villages, rural people usually go to answer the call of nature before sunrise, no such generalization is possible. It depends upon habit of the individual, the state of his health, particularly of his digestive system, weather and several other factors. Time required for digestion may depend upon the nature of food. Process of digestion is very greatly delayed in the case of vegetable food consumed by Indians. Time varies according to digestive capacity. The process of digestion is not uniform. It varies from individual to individual. Digestion varies with the state of gastric mucosa. It also depends on the health of person at particular time. [vide : 1971 Criminal L.J. 1511 (V 77 C 445), Sheo Darshan v. State of Uttar Pradesh, AIR 1971 SC 1794, State of Uttar Pradesh v. Shanker, AIR 1981 SC 897, Lachman Singh versus State, AIR 1952 SC 167, Nihal Singh versus State, AIR 1965 SC 26 and Shivaji versus State, AIR 1973 SC 2622].
22. If entire facts and circumstances of case and also evidence available on record are compared with the submission raised by learned counsel for parties in light of above settled propositions of law, it emerges that on the basis of contents of intestines it cannot be held that deceased was done to death in the wee hours of 04.10.1990 itself. As has been laid down in the aforesaid decisions, it will be only speculation that deceased was done to death as has been suggested by learned counsel for accused-appellants. Post mortem on the body of deceased was done on 05.10.1990 at 01:45 p.m. and offence is said to have been committed on 04.10.1990 at 02:00 p.m., certainly digestive process could also continue after the death of a person, hence submission raised by learned counsel for appellants in this respect is not acceptable. Although, opinion expressed by PW-5 about date and time of death of deceased is mere opinion, yet this fact is established from medical evidence that cause of death of deceased was drowning and muddy water was also found in the stomach of deceased. Death of deceased could take place at about 02:00 p.m. on 04.10.1990. Thus, medical evidence is not contrary to oral version.
23. So far as existence of F.I.R. at the time mentioned in chik, contradiction regarding preparation of written report, receiving of special report by concerned Magistrate belatedly are concerned, in this matter incident is said to have taken place on 04.10.1990 at 02:00 p.m.. F.I.R. came into existence on the same day at 04:00 p.m., distance between place of occurrence and police station concerned is seven kilometers. PW-2 has stated that initially from the place of occurrence he went to house and thereafter on a motor cycle proceeded to police station concerned from the same path where dead body of the deceased was lying. In the inquest report, offence under Sections 147 and 149 I.P.C. has been added subsequently with different ink but this fact alone is not sufficient to hold that F.I.R. was not lodged on the date and time mentioned therein, especially when this fact has been clarified by the prosecution witnesses during trial. Contradictions on the point of preparation of written report, going to police station concerned and non-disclosing some facts, as has been suggested by defence in cross examination of PW-2, cannot be said that F.I.R. was not in existence at the time of preparation of inquest report. If Investigating Officer did not visit the place where deceased and PW-1 were grazing cattle and did not prepare site plan of the said place, this fact is also not sufficient to hold that F.I.R. is an ante-timed document. Keeping in view distance between place of occurrence and police station concerned, mode of conveyance and manner in which written report Ext. Ka-1 was prepared by PW-2 himself, we are of the considered view that findings recorded by trial court on the point of existence of F.I.R. is based on correct appreciation of evidence and same does not require interference. On the issue of laches on the part of Investigating Officer in the investigation, receiving of special report by the concerned Magistrate belatedly, difference in time of receiving of police papers and the dead body, plea taken by learned counsel for appellants cannot be accepted as they do not go to root of the present case. At this stage, it is clarified that only on the basis of delay in lodging F.I.R., sending of special report belatedly, difference in time of receiving of dead body and police papers and non- mentioning of crime number in some police papers, sanctity of F.I.R. cannot be doubted and prosecution case cannot be disbelieved if it is supported by other evidences and inspires confidence.
24. So far as submission regarding enmity is concerned, the admitted position of law is that enmity is a double edged weapon which can be a motive for crime as also the ground for false implication of accused persons. In case of inimical witnesses, courts are required to scrutinize their testimony with care to find out whether their testimony inspires confidence notwithstanding the existence of enmity. Where enmity is proved to be the motive for commission of crime, accused cannot urge that despite proof of motive of crime, witnesses, who are inimical, should not be relied upon. Testimony of eye-witnesses, which is otherwise convincing and consistent, cannot be discarded simply on the ground that deceased was related to eye-witnesses or previously there had been some disputes between accused and deceased or the witnesses. Existence of animosity between accused, deceased and the witnesses may, in some cases, give rise to the possibility of witnesses exaggerating the role of some of accused or trying to rope in more persons as accused persons for commission of the crime. Such a possibility is required to be ascertained on the facts of each case.
25. As regards motive is concerned, it is an essential ingredient to constitute the crime. Though we are oblivious of fact that motive relegates into back ground in a case of direct ocular testimony and is not of much significance, but where motive is false and cooked up, then it assumes importance to test veracity or other wise of prosecution witnesses. Reason shown in the F.I.R. to commit present offence by accused-appellants and stated by PW-2 and PW-3 in their statements before court on oath may be a ground to commit present offence but at the same time it may also be a reason for false implication. Since in this case prosecution has come with ocular version, motive loses its significance. Effect of motive attributed in the present matter has to be seen in the light of other evidence.
26. Now, we come to the submission regarding presence of PW-2 and PW-3 at the place of occurrence at the time of incident.
27. In this matter, prosecution case is that while PW-2 and PW-3 were going to collect their Urd crop from their field at about 02:00 p.m. as and when they reached near the place of occurrence they saw accused-appellants beating the deceased. Statement of PW-2 and PW-3 also reveals that accused persons took the deceased in drain (Nala) and pressed him from face side in muddy water for a long time which resulted into his death. It has also come in the statement of PW-2 that after seeing the incident he did not react nor tried to save the deceased nor moved the place where accused were committing present offence. PW-3 at one point of time in cross-examination has stated that he threw some stones towards accused persons to deter them. If statements of PW-2 and PW-3 are minutely analyzed in its entirety, following facts may be deduced:
(i) They have not disclosed details of field where they were going to collect Urd crop.
(ii) Neither they made any reaction nor proceeded to place of occurrence to save the deceased despite the fact that accused were not having any weapon.
(iii) Investigating Officer has also not taken into custody the bag and other items possessed by them to collect Urd crop.
(iv) Though deceased was son and brother of PW-2 and PW-3 yet they did not touch the body of deceased to satisfy themselves as to whether deceased was alive or dead.
(v) They have also not taken out the deceased from drain (Nala).
(vi) PW-2 did not disclose in F.I.R. that he left place of occurrence leaving PW-3 there. This fact was also not disclosed by them to the Investigating Officer in the statement recorded under Section 161 CrPC and for the first time same was stated by PW-3 before Court.
28. PW-1 Lakhan Lal and deceased both were grazing cattle, deceased was taken by accused Arvind before this witness but PW-1, when examined before Court, stated that he had disclosed to the Investigating Officer that PW-2 had told him that accused committed murder of deceased by pressing his face in drain (Nala) but this fact is not mentioned in the statement recorded under Section 161 CrPC. PW-1 did not go to place of occurrence after receiving this information but he remained present at the place where cattle were grazing.
29. It also emerges from prosecution evidence that there was enmity between PW-2 and father of accused Jeetu and criminal cases were going on between them. PW-1 has also not shown to Investigating Officer the place where deceased was grazing cattle nor any site plan was prepared by Investigating Officer.
30. In the statement of prosecution witnesses it has also come that witnesses and accused persons were unarmed. Investigating Officer has not prepared site plan of the place where PW-2 and PW-3 were going to collect Urd crop. If factual situation emerged in the matter are minutely analyzed with the submissions raised by learned counsel for parties, this fact that PW-1 and deceased were grazing cattle in their field at about 1.00 p.m. on the day of occurrence is consistent and clear. In the F.I.R. it has clearly been mentioned that deceased had gone to field alongwith cattle for grazing them. Deceased was taken by accused Arvind before PW-1 Lakhan Lal and one Achhe Lal, as mentioned in the F.I.R. and stated by prosecution witnesses PW-1 and PW-2. Going of PW-2 and PW-3 to collect Urd crop in the day hours at about 2.00 p.m. is not unnatural or unbelievable. Non-taking into possession the bags carried by PW-2 and PW-3 is not sufficient to disbelieve their presence at the place of occurrence. If prosecution evidences are minutely analyzed in its entirety, it is also clear that field belonging to PW-2 was also situated towards same direction, where PW-2 and PW-3 were going. Enmity between parties is admitted to both parties and this fact cannot be taken to be a reason for false implication of accused. PW-2 and PW-3 both have seen the incident, however, they did not react in the manner argued by learned counsel for appellants to save the deceased but this fact is also not sufficient to disbelieve their presence at the place of occurrence. Villagers used to go to collect crop in day hours. Accused were five in numbers. Deceased was being beaten by accused persons. There were only PW-2 and PW-3 from informant side. This fact has also come that they made cry but were threatened by accused. It might be possible that they would have scared and due to that reason they did not go to fight with accused to save the deceased. Conduct of PW-2 and PW-3 though appears to be unnatural, being father and brother of deceased, but reaction of each individual in the facts and circumstances of case differs with each other. It has also come in prosecution evidence that some muddy water was present in the drain (Nala). Muddy water was also found in the stomach of deceased during post morterm, meaning thereby deceased died due to drowning. Doctor examining the deceased has clearly opined that death of deceased could take place while he was being pressed towards face side in muddy water. Opinion expressed by doctor concerned also supports the statement of PW-2 and PW-3. Thus, in the present matter, medical evidence is fully consistent and is in support of oral version. Hence, presence of PW-2 and PW-3 at the place of occurrence also appears probable and believable. It is also clarified that though they are chance witnesses yet their presence at the place of occurrence is not doubtful. It is also noteworthy that their testimony cannot be disbelieved only on the ground that they are close relatives of deceased. Informant will not falsely implicate an innocent person when his son was done to death. It is settled that testimony of an eye-witness merely because he happens to be a relative of deceased cannot be discarded as close relatives would be the last one to screen out real culprit and implicate innocent person, as per the Apex Court in the case of Dilip Singh Vs. State of Punjab AIR 1953 S.C. 364. This aspect of the matter has further been clarified by Apex Court in Dharnidhar Vs. State of Uttar Pradesh (2010) 7 SCC page 759 as follows:
"12. There is no hard-and-fast rule that family members can never be true witnesses to the occurrence and that they will always depose falsely before the court. It will always depend upon the facts and circumstances of a given case. In Jayabalan v. UT of Pondicherry (2010) 1 SCC 199, this Court had occasion to consider whether the evidence of interested witnesses can be relied upon. The Court took the view that a pedantic approach cannot be applied while dealing with the evidence of an interested witness. Such evidence cannot be ignored or thrown out solely because it comes from a person closely related to the victim."
31. Enmity shown by accused appellants is also not sufficient to discredit the testimony of PW-2 and PW-3. Conduct of PW-1 also does not create any doubt about veracity of statements of PW-2 and PW-3. It is natural conduct of the father that leaving his son at the place of occurrence he left the said place to lodge F.I.R.. It has come in the evidence that when PW-1 informed villagers and family members, people immediately reached the place of occurrence. Thus, submission raised by learned counsel for appellants in this regard is also not acceptable. F.I.R. and other police papers were prepared at the time mentioned therein. Minor discrepancies and mistake occurred in these papers do not go to the root of prosecution case nor variations, exaggerations etc. elicited during course of arguments by learned counsel for appellants are fatal to prosecution case on material points.
32. Thus, on close scrutiny of entire evidence available on record, we are of the view that prosecution has proved its case beyond reasonable doubt and deceased was done to death by accused appellants in the manner and style stated by prosecution witnesses on the date, time and place of occurrence. PW-2 and PW-3 both have seen the occurrence. Their statements on material points are consistent and clear.
33. As far as involvement of accused appellants in the present matter is concerned, it is evident from record that they were not having any weapon but were beating the deceased at initial stage and thereafter they took him in the drain and pressed him from face side for a long time which resulted into his death. It is also established by prosecution that accused were five in number, therefore, common object of all five accused can also be gathered from the attending circumstances emerged on the spot itself. Therefore, Trial Court has rightly convicted accused appellants for the offence under Sections 147 IPC and 302 IPC read with Section 149 IPC. It is also evident from record that accused appellant no.4 died during pendency of this appeal. Accused appellant no.5 has been declared juvenile in conflict with law. No appeal has been preferred against the order declaring him juvenile in conflict with law nor any objection has been filed during pendency of this appeal on behalf of State. Matter relates to the year 1990. Accused appellant Dinesh was sometime in jail in this matter.
34. Report submitted by Juvenile Justice Board (in short 'JJ Board') reveals that accused-appellant was aged about 16 years 03 months and 03 days on the date of incident. From perusal of inquiry file submitted by concerned JJ Board, it also appears that inquiry has been conducted as per Rules, opportunity has been given to complainant as well as accused-appellant to lead evidence and witnesses have been examined.
35. Keeping in view the discussions made herein-in-above, since appellant no.5 was Juvenile on the date of incident and no argument has been advanced about conviction of accused-appellant no.5 for the aforesaid offences, this Court has to take into consideration provisions of Section 15 of Juvenile Justice (Care and Protection of Children) Act, 2000 (hereinafter referred to as "JJ Act, 2000") to pass order in respect of accused-appellant no.5 (Juvenile in conflict with law). If submission raised by learned counsel for appellants as well as learned A.G.A. are taken into consideration, accused declared Juvenile in conflict with law under JJ Act, 2000 can be sent to Special Home for a maximum period of three years. Other treatments to deal with juvenile in conflict with law have also been given under Section 15 of said Act.
36. In the present case, as is evident from record and also with the submission raised by learned counsel appearing for appellants that accused appellant no.5 was in jail for sometime. At this juncture, it would be appropriate to look into the ratio laid down by Apex Court while dealing with similar situation like in the case in hand.
37. In Pradeep Kumar Vs. State of U.P. 1995 SCC (Cri) 395, a three-Judge Bench of Hon'ble Apex Court finding that accused was below 16 years on the date of commission of offence held that as per the then provisions of Uttar Pradesh Children Act, he cannot be sentenced to life and as the accused had crossed 30 years, directed his release from Jail.
38. In Upendra Kumar Vs. State of Bihar 2005 (3) SCC 592, under similar circumstances, Apex Court sustained the conviction under Section 302 IPC, however, quashed the life sentence and ordered release of juvenile from jail.
39. In Vaneet Kumar Gupta @ Dharminder Vs. State of Punjab 2009 (17) SCC 587, accused who was sentenced to life under Section 302 read with 149 I.P.C. was found to be a Juvenile at the time of commission of the offence. Court noticing the fact that he is in jail for several years, directed his release from jail.
40. Similar view has also been taken in Satish @ Dhanna Vs. State of M.P. and others 2009 (14) SCC 187 and in Vikram Singh Vs. State of Haryana 2009 (13) SCC 645.
41. In Dharambir Vs. State 2010 (2) SCC 344, appellant was sentenced to life. In the course of his Criminal Appeal before Apex Court, in the enquiry conducted, it was found that at the time of commission of offence, he was below 18 years of age and was a juvenile in conflict with law and by the time his appeal reached the Supreme Court, he had reached 35 years of his age and had spent 2 years, 4 months and 4 days in jail. So, even as per Section 15 of the JJ Act, 2000 he has to be sent to the Special Home for the balance 8 months. Court noticing that sending him to Special Home will not be in the interest of other juveniles in the Home, directed his release from jail.
42. In Bhim @ Uttam Ghosh Vs. State of West Bengal 2010 (14) SCC 571, appellant was sentenced to 5 years rigorous imprisonment. It was established before the Honourable Supreme Court that on the date of offence, he was a juvenile in conflict with law and he is entitled to the benefit of JJ Act, 2000 and by that time, he has become 42 years old. But, he was in jail for less than 3 years. In the circumstances, Court did not detain him in jail for the remaining period but directed his release from jail.
43. In Lakhan Lal Vs. State of Bihar 2011 (2) SCC 251, accused who was sentenced to life under Section 302 read with 34 I.P.C. was found to be a Juvenile in conflict with law at the time of commission of the offence. By the time his appeal reached to Supreme Court, he had crossed 40 years age. He was in jail for more than 7 years. Under these circumstances, referring to Dharambir Vs. State (supra), Court set aside his life sentence and directed his release.
44. In Amit Singh Vs. State of Maharashtra and another 2011 (13) SCC 744, accused was found guilty under Section 396, 506, 341, 379 read with 120-B I.P.C. and Section 25 (1-B), 5 read with 27 of Arms Act. Apart from the other sentence of imprisonment, he was also sentenced to life and his sentences were confirmed by Bombay High Court. Supreme Court also dismissed his Special Leave Petition. Subsequently, he filed a Writ Petition before Supreme Court under Article 32 of Constitution claiming juvenility which was considered and he was found to be eligible for benefit under JJ Act, 2000 and considering the fact that by that time he had been in jail for 12 years, Court held that he was in jail for more than the maximum period for which a juvenile may be confined in a Special Home and directed his release from jail.
45. In Kalu @ Amit Vs. State of Haryana 2012 (3) SCC (Cri) 761, Court, while confirming conviction of the appellant under Section 302 read with Section 34 I.P.C., since the appellant was a Juvenile in conflict with law within the meaning of JJ Act, 2000 on the date when the offence was committed, he was already in Jail for 9 years and attained majority long back, directed his release from jail and also noticing Section 19 of JJ Act, 2000 held that he shall not incur any disqualification because of his conviction.
46. In Vijay Singh Vs. State of Delhi 2012(3) SCC (Cri) 1044, appellant who was convicted and sentenced to undergo 5 years rigorous imprisonment under Section 307 IPC, claimed that he was a Juvenile in conflict with law on the date of commission of offence and Court on the basis of the date of birth mentioned in his School Leaving Register and his Original Admission Register accepted his plea of juvenility and noticing that the appellant is in jail for more than 3 years directed his release from jail.
47. In Babla @ Dinesh Vs. State of Uttarakhand 2012 (3) SCC (Cri) 1067, appellant was sentenced to life under Section 302 read with 149 I.P.C. and on the basis of the report of the Sessions Judge, Court accepted that the appellant was Juvenile in conflict with law on the date of commission of offence and since he was in jail for more than 3 years out of the maximum period prescribed under Section 15 of JJ Act, 2000, set aside his life sentence and directed his immediate release from jail.
48. Recently, Apex Court in Criminal Appeal No. 459 of 2018 (Mahesh Vs. State of Rajasthan and others) decided on 27.03.2018 reported as 2018 (2) RCR(Criminal) 687 instead of remanding the matter to JJ Board for passing appropriate order under Section 15 of JJ Act, 2000 on the basis of period already undergone released the accused-juvenile from Jail, observing:
" ... having regard to the period of custody suffered; the age of the accused Appellants as on date; the efflux of time since the date of occurrence and all other relevant facts and circumstances we are of the view that while maintaining the conviction of the accused Appellants the sentence imposed should be modified to one of the period undergone. We order accordingly."
49. If ratio laid down in the above authorities are taken into consideration and applied to the case in hand, no fruitful purpose would be served by remanding the matter to JJ Board as accused-appellant no.5 has already served out some period in jail. Moreover, he was aged about 16 years 03 months and 03 days on the day of incident and by now must have crossed the age of 44 years. Therefore, he could not be kept along with other Juveniles in Juvenile Special Home in this age group.
50. Hence, impugned judgment and order dated 7.2.1997 passed by 2nd Additional Sessions Judge, Jhansi in Session Trial No. 214 of 1991, so far as appellant no.5 has been convicted for the offences under Sections 302 / 149 IPC and Section 147 I.P.C., is confirmed. However, so far as punishment / treatment is concerned, same is modified to the period already undergone by appellant no.5. He shall be set at liberty, if not wanted in any other case.
51. In view of Section 19 of JJ Act, 2000, appellant no.5 shall not suffer any disqualification because of his conviction and period of sentence undergone by him.
52. As regards sentence imposed upon other appellants is concerned, it is always a difficult task requiring balancing of various considerations. The question of awarding sentence is a matter of discretion to be exercised on consideration of circumstances aggravating and mitigating in the individual cases.
53. It is settled legal position that appropriate sentence should be awarded after giving due consideration to the facts and circumstances of each case, nature of offence and the manner in which it was executed or committed. It is obligation of court to constantly remind itself that right of victim, and be it said, on certain occasions person aggrieved as well as society at large can be victims, never be marginalised. The measure of punishment should be proportionate to gravity of offence. Object of sentencing should be to protect society and to deter the criminal in achieving avowed object of law. Further, it is expected that courts would operate the sentencing system so as to impose such sentence which reflects conscience of society and sentencing process has to be stern where it should be. The court will be failing in its duty if appropriate punishment is not awarded for a crime which has been committed not only against individual victim but also against society to which criminal and victim belong. Punishment to be awarded for a crime must not be irrelevant but it should conform to and be consistent with the atrocity and brutality which the crime has been perpetrated, enormity of crime warranting public abhorrence and it should 'respond to the society's cry for justice against the criminal'. [Vide : (Sumer Singh vs. Surajbhan Singh and others, (2014) 7 SCC 323, Sham Sunder vs. Puran, (1990) 4 SCC 731, M.P. v. Saleem, (2005) 5 SCC 554, Ravji v. State of Rajasthan, (1996) 2 SCC 175].
54. In view of above propositions of law, the paramount principle that should be the guiding laser beam is that punishment should be proportionate to gravity of offence.
55. Hence, applying the principles laid down by the Apex Court in the aforesaid judgments and having regard to the totality of facts and circumstances of case, nature of offence and the manner in which it was executed or committed, in our view, sentence imposed upon other accused appellants is neither exorbitant nor excessive and same is adequate and also proportionate to gravity of offence. They have been awarded minimum sentence for the offence under Section 302 IPC.
56. Hence, on close scrutiny of entire evidence, we are of the opinion that deceased died on the spot due to injuries caused by accused-appellants. Attending circumstances emerged in this case, as discussed above, establish the common intention of accused persons to cause death of deceased. PW-2 and PW-3 have seen the incident. F.I.R. is genuine document. There is no illegality or infirmity in the findings recorded by the trial court in the impugned judgment and order. Trial court has rightly held accused appellant nos. 1,2 and 3 (Arvind, Jai Prakash and Madan) guilty for the offence under Sections 147, 302 read with 149 IPC and sentenced them for life imprisonment.
57. Considering entire aspects of the matter and looking to the circumstances, under which present offence has been committed, we are of the view that impugned judgment and order passed by trial court is well thought and well discussed and trial court has rightly held that prosecution has succeeded to prove guilt of accused appellant nos. 1, 2 and 3 (Arvind, Jai Prakash and Madan) beyond reasonable doubt. As such, impugned judgment and order passed by trial court is liable to be upheld in regard to accused appellant nos. 1, 2 and 3 (Arvind, Jai Prakash and Madan) but appeal having some force is liable to be allowed in part in regard to appellant no.5 (Dinesh), as discussed above.
58. Accordingly present Criminal Appeal is allowed in part. Conviction and sentence imposed upon accused appellant nos. 1, 2 and 3 (Arvind, Jai Prakash and Madan) vide impugned judgment and order dated 7.2.1997 is hereby confirmed. However, conviction of accused appellant no.5 (Dinesh) awarded vide impugned judgment and order is affirmed but sentence of imprisonment for life awarded by trial court to accused appellant no.5 (Dinesh) shall stand reduced to the period already undergone by him. He need not surrender. His bail bonds are cancelled and sureties are discharged from liability.
59. Accused appellant nos. 1, 2 and 3 (Arvind, Jai Prakash and Madan) are on bail. Their personal and surety bonds are cancelled and they are directed to surrender before Chief Judicial Magistrate concerned forthwith for serving out remaining sentence imposed upon them by trial court vide impugned judgment and order.
60. Copy of this judgment alongwith lower court record be sent forthwith to Sessions Judge, Jhansi for compliance. Compliance report be also submitted to this Court.
Order date: 19.12.2018 safi