Allahabad High Court
Ajai Kumar Gupta vs A.Ga. on 5 April, 2024
Author: Siddharth
Bench: Siddharth
HIGH COURT OF JUDICATURE AT ALLAHABAD Neutral Citation No. - 2024:AHC:58962-DB A.F.R. Reserved On:-12.02.2024 Delivered On:-05.04.2024 In Chamber Case :- CRIMINAL APPEAL No. - 573 of 1983 Appellant :- Ajai Kumar Gupta Respondent :- A.Ga. Counsel for Appellant :- Sri Kamal Krishna,Ashok Gupta,D.N.Wali,Rakesh Kumar Singh,Viresh Gupta,Viresh Misra Counsel for Respondent :- A.G.A.,V.S. Chauhan And Case :- CRIMINAL APPEAL No. - 705 of 1983 Appellant :- Satish Kumar Gupta Respondent :- State of U.P. Counsel for Appellant :- Kamal Krishna,Chandra Shekhar Garg Counsel for Respondent :- A.G.A.,V.S.Chauhan Hon'ble Siddharth,J.
Hon'ble Ram Manohar Narayan Mishra,J.
(Delivered by Ram Manohar Narayan Mishra,J.)
1. Heard Sri Kamal Krishna learned Senior Advocate, assisted by Sri Rakesh Kumar Singh, learned counsel for the appellant, Ajai Kumar Gupta; and also assisted by Sri Chandra Shekhar Garg, learned counsel for the appellant, Satish Kumar Gupta; as well as Sri Virendra Singh Chauhan, learned counsel for the mother of the deceased; Sri Gyan Narayan Kanojia, learned AGA Ist for the State and perused the material placed on record.
2. As both the criminal appeals have arisen out of same judgement of conviction and sentence, hence, these are being decided by this common judgement:-
3. Above noted Criminal appeals have been preferred by the accused appellants namely, Ajai Kumar Gupta and Satish Kumar Gupta, with a prayer to set aside the judgment and order dated 4.3.1983, passed by Sessions Judge, Banda, in S.T. No.285 of 1982, under Sections- 302 IPC, arising out of Case Crime No.78 of 1982, Police Station- Atarra, District- Banda, whereby, they have been convicted for charge under Section 302 read with Section 34 IPC and have been sentenced to imprisonment for life. The appellant Ajai Kumar Gupta was released on bail on 8.3.1983 and appellant Satish Kumar Gupta was released on bail vide order dated 22.3.1983, in their respective appeals.
4. The factual matrix of the case in brief are that the informant lodged present FIR on the basis of written report (Ext.Ka-1) at police station concerned on 16.5.1982, at 4:30 AM, with allegation that a groom's party (barat) had come from district Jalaun at the place of his maternal uncle, Raj Singh, in village Musasi, Police Station Badausa. This marriage party was to leave in the intervening night of 15/16.5.1982 from Atarra railway station. The passenger train by which this marriage party was to leave was late. The train arrived at the station at around 2:00 AM, in which informant got the marriage party boarded and he also travelled in the same train alongwith his three companions up to Khurhand railway station together with said groom's party (barat). They disembarked from the train at Khurhand railway station and came back to railway station Atarra by Bundelkhand Express. It was 3:30 AM. As soon as they reached at the platform, accused Ajay Kumar Gupta and Satish Kumar Gupta, who hail from Kasba Atarra and were known as local goons, appeared there. Satish Kumar wielded an iron rod in his hand. They stopped Shyam Sundar Gupta, one of the companions of the informant and accosted him while abusing that he appeared to be a rogue (badmash), from where he was coming. The informant and his companions objected to this and intervened. They asked them not to speak in bad manner, which resulted in altercation between informant and his companions and the accused persons. They came out of the station and sat in the tea shop of one Badku on a bench lying outside his shop. These two miscreants started abusing and threatening them while standing in front of the shop. Avadhesh Singh, one of the companions of the informant, took a strong exception to their conduct and asked them to refrain from abusing them. As soon as he stood from the bench, Satish Kumar Gupta caught hold of his hand and twisted it and got him forcefully seated on the bench. Accused Satish Kumar also exhorted accused Ajay Kumar to kill him as he was showing arrogance, thereupon, accused Ajai Kumar whipped out a countrymade pistol from pocket of his pant and fired close to the chest of Avadhesh Singh. Avadhesh Singh got injured in his left chest and fell down on the bench. Thereafter, both the accused fled away towards town. The occurrence was also seen by one Kishan Pal Singh. A written report Ext.Ka-1 of the occurrence was lodged by Rakesh Kumar Singh (PW-1) at 4:30 AM at Police Station Atarra, situated about one kilometer away from the scene of the incident. Station Officer of Police Station Atarra, Ramji Mishra (PW-5) was present at the police station. Soon after the case was registered, he took up the investigation and examined Rakesh Kumar Singh and Shyam Sundar. He reached at the scene of incident at about 7:30 AM and found dead body of Avadhesh Singh lying on the bench in front of the shop of Badku outside the railway station. He started inquest proceeding and preapred Panchayat nama (Ext.Ka-7), Challan (Ext.Ka-8), Sketch (Ext.Ka-9) and letters (Ext.Ka10 and 11) for postmortem. The dead body was sealed and handed over at 9:00 AM to constable Jagdeo Lal and Jeev Mandal alongwith inquest papers and copies of chik FIR (Ext.Ka-20) and general diary (Ext.Ka-21). The Investigating Officer also recovered from the dead body a pair of sleeper (Ext.Ka-5), blood stained shirt (Ext.Ka6) and prepared recovery memo Ext.Ka-12 and 13 in respect thereof. He also recovered sample boold stained and unstained chips (Ext.Ka-6 and 7) of the bench and prepared memo (Ext.Ka-14) in respect thereof. The Investigating Officer rushed from the scene of occurrence and arrested the accused at about 11:00 or 11:15 AM near the hostel of Degree College and on search found a .315 bore countrymade pistol, two live cartridges and discharged cartridge from the possession of accused Ajai Kumar. The accused were lodged at the police station at 13:15 hours on the same day. The Investigating Officer inspected the scene of occurrence on 18.5.1982, examined witnesses Ramhit Singh, Kishanpal, conducted spot inspection and prepared site plan (Ext.Ka-15) and after concluding the investigation submitted chargesheet (Ext.Ka-16) on 1.6.1982. The autopsy was conducted by Dr. G.J. Gupta, Medical Oficer, District Hospital, Banda (PW-6) at 12:10 Noon on 17.5.1982. The deceased was aged about 18 years and had died about one and half days before.
External examination:- Young man of average built, rigor mortis passing off from the upper extremities and partially present in the lower extremities, decomposition set in, foul smell, abdomen penis scortum swollen up, blisters are occasionally present. Skin peeled off at places.
Antemortem Injuries:-
(1) gun shot wound of entry 1.5 cm X 1.5 cm X chest cavity deep on the front of left side chest 12 cm above and lateral to left nipple blackening, charring and tattooing present. Direction inward, backward and downward towards right side. One section heart perforated and lacerated. Left lung lacerated and perforated at one place. 4th rib front left fractured.
(2) Gun shot wound of exit 1 cm X 1 cm X communicating to injury No.1, on the back of chest right side 5 cm lateral to verbatim spin and 7 cm below and medial to inferior angle of scapula margin lacerated and everted.
Internal Examination:- Pleura perforated on left side and lacerated on right side. Right chamber of heart full and left empty weight 240 grams. Free and clotted blood about 1.5 litres present in chest cavity. Stomach contained about 200 grams of semi digested food material. Small and large intestine contain faecal matter and gases.
In the opinion of Dr. G.J. Gupta cause of death was due to shock and haemorrhage resulting from ante mortem gun shot injuries. Doctor also recovered a blood stained under shirt (Ext.Ka-4) and underwear (Ext.Ka-3) and pant (Ext.1) from the dead body and forwarded the same to the police station. The accused have thus been committed for their trial upon being charged, stated as above.
5. The prosecution, in support of its case examined Rakesh Kumar Singh, complainant, as PW-1; Ramhit Singh as PW-2 and Kishanpal as PW-3 on facts. PW-4, Bahadur Singh was Head Moharrir of the police station Atarra and he proved chik FIR, general diary entries and other police papers. PW-5, Station Officer, Ramji Mishra, proved the investigation of the case as indicated above. Dr. G.J. Gupta, PW-6, proved postmortem examination of the deceased and memo Ext.Ka20, which he had prepared at the time of examination.
6. The prosecution tendered in evidence report of Chemical Examiner (Ext.Ka 22) and of serologist (Ext. Ka 23), according to whom blood stained shirt (Ext.2), chips of the Bench (Ext-6), Banyan (Ext.4), underwear (Ext.3) and pant (Ext. 1), were found to contain human blood and the pant (Ext.-1), chips (Ext-6) and Banyan (Ext.-4) were found to contain blood of group "O'.
7. The accused denied the allegations of the prosecution and their complicity in the occurrence of this case in their statement recorded under Section 313 Cr.P.C. Accused Ajai Kumar stated that S.O. of P.S. Atarra namely, Shri Ramji Mishra, was highly inimical with his uncle Shiva Prasad Gupta, who edited weekly newspaper 'GANTAVYA LAHAR', that his uncle had published articles against misdeeds of Shri Ramji Mishra and that the news item in respect thereof were supplied by him and that there fore Shri Ramji Mishra implicated him falsely in the case. He also alleged that deceased Avdhesh Singh was not resident of village Musasi and was also not related as nephew of P.W.-2 Ramhit. The accused also alleged that he was taken away by the police from his house at about 8:00 A. M. on 16.5.82 and was implicated in the case. Accused Satish Kumar stated that he was taken away by the police from his house at about 9:00 A. M. on 16.5.82 and was required by S.O. Ramji Mishra to become a witness against accused Ajai Kumar, that when he declined to become a false witness, he too was implicated in the case. The accused also alleged that there had been ill will between him and accused Ajai Kumar and that he had instituted a criminal case under section 324 IPC against Ajai Kumar.
8. After hearing counsel for parties, the accused were called upon to enter in defence. Accused examined Kali Charan, Assistant Judicial Assistant of Collectorate as D.W.1 to state that special report of this case, which is received at the residence of District Magistrate was received in his office on 22.5.82 and that endorsement was made : Send to A.J.A.: by Shri R.C.Dixit for Collector on 22.5.82. The witness brought file of the special report and made statement with reference to the same. The said special report has been brought on record as Ext. Kha 3. The accused further examined S.U.Khan, Station Master, Atarra Railway Station as D.W.-2, to state that on the night between 15 and 16.5.1982, three tickets were sold at Atarra Railway Station for Jhansi, that on that night Bundelkhand Express arrived Atarra Railway Station at 1:12 AM and left for Jhansi at 1:17 AM and that Bundelkhand Express arrived Atarra Railway Station at 3:23 AM from Jhansi. The accused have also filed some documents, which will be dealt with at appropriate stage in this judgement.
9. There can be no doubt that Avdhesh singh, a young man aged about 18 years, was murdered in the wee hours of 16.5.82. There can also be raised no doubts that dead body of Avdhesh Singh was found on a woođen bench lying in front of the shop of Badku close towards south of Atarra Railway Station. It is also borne out from the evidence that the assailant fired a gun shot which caused gun shot wound of entry on the front of left side chest 12 cm above and lateral to left nipple and corresponding gun shot wound of exit on the back of chest right side from close range, say few inches, as blackening, charring and tattooing was present. It is also not denied that the Investigating Officer found dead body of Avdhech Singh on the bench in front of the shop of Badku. The accused persons had come up of age at the time of incident and were of young age at the time of incident. In essence, the defence denied participation of present appellants in homicidal death of the deceased Avadesh Singh.
10. The prosecution in order to bring home its case relied upon evidence of P.W.1 Rakesh Kumar Singh, complainant; P.W.2 Ramhit Singh and Kishan Pal P.W.3. P.W.-1, Rakesh Kumar Singh, had set up the story of the prosecution in all its essential details in the first information report Ext. Ka-1, but was not inclined to support the case in full in his evidence. According to the evidence of P.W.-2, Ramhit Singh, the case of the prosecution had been that Rakesh Kumar Singh, Ramhit Singh, Avdhesh Singh and Shyem Sundar had escorted the Barat party from the house of Raja Singh from village Musasi to Atarra, that they took the Barat party by Bundelkhand Express from Atarra Railway station towards Jhansi, that they got down at the corssing at Khurhand Railway Station and came back by Bundelkhand Express, that they got down at about 4:00 AM at Atarra Railway Station, that the accused accosted Shyam Sundar at the platform and came along with them at the shop of Badku and hurled abuses and that when Avdhesh Singh got up to protest, accused Satish Kumar twisted his hand and got him seated on the bench and that at his exhortation accused Ajai Kumar whipped out a country made pistol and fired at Avdhesh singh and killed him.
11. P.W.1, Rakesh Kumar Singh, in his evidence stated that he along with Avdhesh Singh, Shyam Sundar and Ramhit had come to Atarra to see off the Barat party which was returning after the marriage of sister of Raja Singh of village Musasi, that they went upto Khurhand with the Barat party and returned by another train, that the accused met them at Atarra Railway Station and accosted Shyam Sundar, that they all came along with the accused upto the shop of Badku and sat on the bench lying there, that the accused continued hurling abuses and that Avdhesh Singh got up to protest as to why the accused were hurling abuses. The witness thereafter appeared not inclined to support factum of the actual incident in which Avdhesh Singh was murdered. He stated that thereafter he went away on another shop for getting tea prepared, that in the meantime he heard a gun shot fire, that he rushed and came there and that he saw Avdhesh singh lying dead and the two accused running away. P.W.-1, Rakesh Kumar Singh, further stated that he at once rushed to the police station and lodged written report Ext.Ka-1 and that he had correctly stated in the report as to what he had seen. This witness in the report Ext.Ka 1 had stated that accused Satish Kumar twisted the hand of Avdhesh Singh and that on the exhortation of Satish Kumar, accused Ajai Kumar whipped out a country made pistol and fired at Avdhesh Singh by his chest.
12. PW-2, Ramhit Singh has testified before the Court that he was identifying both the accused Ajai Kumar and Satish Kumar prior to incident and he identified them before the Court. He further stated that informant Rakesh Kumar Singh, who is before the Court is his nephew and deceased Avadhesh Singh was also his nephew. On fateful day marriage of the sister of Raj Singh was scheduled in village Musasi. The groom's party had come from District Jalaun. It was intervening night of 15/16.5.1982. The groom's party went back from Atarra by train. The witness accompanied by Rakesh, Avadhesh (deceased) and Shyam Sundar had come to station to see off the party, which was boarded in the train at around 3:00 AM in the Bundelkhand Express, which was running between Manikpur to Jhansi at Atarra Railway Station. He also boarded the train alongwith Avadhesh, Rakesh and Shyam Sundar and travelled up to Khurhand alongwith groom's party. They disembarked from the train at Khurhand and reached at Atarra Railway Station at 4:00 AM by Jhansi Manikpur Train from Khurhand. Accused Ajai Kumar and Satish Kumar met them at railway station Atarra, who grabbed Shyam Sundar and stated that he is gunda. The witness and his companions objected to this and they walked up to tea shop of Badku while talking together. The shop was closed and light was illuminating on electric poll. They sat on the bench lying in front of the shop. The accused Ajai Kumar and Satish Kumar engaged in abusing throughout whereupon Avadhesh stood up and asked them to refrain from abusing them. Thereupon, Satish Kumar grabbed hand of Avadhesh and twisted it and forcefully made him to sit on the bench and exhorted Ajai Kumar to kill him. Ajay Kumar whipped out a countrymade pistol from his west and pointed out towards left side of his chest and shot a fire. Avadhesh rolled down on the bench and died. The incident was witnessed by the witnesses Rakesh Kumar, Shyam Sundar and one another person named as Krishna Pal. They cried on the incident whereupon the accused persons fled away in southwards of the town. He stayed near the dead body and Rakesh Kumar went to police station Atarra to lodge a report. A Sub-Inspector and constable reached the spot at around 6:00 AM. The witness opened a sealed bundle comprising a pant, bushirt, underwear, banyan and a pair of chappal on which material Ext.1 to 5 were marked. He identified these articles as those worn by the deceased at the time of incident. The witness also stated that the deceased Avadhesh was his real nephew and Rakesh (PW-1) is not closely related to him. In cross-examination this witness denied his statement recorded by the Investigating Officer under Section 161 Cr.P.C. that on that date marriage of his daughter was scheduled in his house and clarified that he stated to Investigating Officer that on that date marriage of his niece was scheduled and he is not aware as to how the Investigating Officer had written in his statement that marriage of his daughter was scheduled. He also denied statement under Section 161 Cr.P.C. that Rakesh Kumar Singh was his 'Bhanja' (sister's son). He also stated that he had told the Darogaji that Satish Kumar exhorted Ajai Kumar to kill Avadhesh by calling his mother's name and if Darogaji has referring the abuse hurled on Avadhesh by some other way, he is not apprised of that. He had stated that he has told the Darogaji that he stayed near the dead body, when Rakesh went to lodge the report at police station, if this fact is not appearing in his statement, he is not able to disclose its reason. Barat had visited the venue of marriage on 13th date by train at Badausa and he had visited the station to receive the barat, which comprise 15 persons. 4 to 5 other persons also accompanied him while receiving the barat. The marriage was solemnized in the intervening night of 13/14.5.1982. The barat was scheduled to depart in the morning of 15.5.1982. One Raghuraj Singh of Musasi had stopped the barat by way of courtesy, when it departed in the morning of 15.5.1982. He had purchased tickets of groom's party up to Jhansi for which money was paid to him by father of Raj Singh, which cost total Rs.156/-. The witness and his 4 companions had not purchased any ticket while returning from Khurhand. There was a crossing at Khurhand railway station and for that reason, the descended from train at Khurhand and went back. There was much rush in the train on that night. He has been posted as police constable and retired 16 years earlier to his statement before the Court. There were a number of passengers in musafirkhana of railway station Atarra on that date. They did not find any police constable at the railway station at the time of incident. They sat on the bench with a view to let the accused move from there. The deceased was sitting on the bench while keeping his face northwards. Shyam Sundar and Rakesh were sitting on the bench by the side of Avadhesh. There was time gap of five minutes between their descending at the platform and commission of the offence. Shyam Sundar also accompanied Rakesh after the incident to lodge the report. The witness denied the defence suggestion that he had not seen any occurrence and the Sub Inspector of Police got written report prepared in consultation with the witness and his companions. He further stated that the accused persons were running shops at Atarra and had seen them at Atarra.
12. PW-3, Kishan Pal, is also projected as one of the persons who was coming down from platform alongwith informant and deceased and had seen the occurrence. He is resident of Atarra town and stated that he had to go to Chitrakoot by train, which he missed, therefore, he was coming back from railway station towards town at about 4:00 AM. He heard and saw the commotion in the nearby tea and sweet shop, where murder had taken place. In the cross examination, the witness was declared hostile and in the cross-examination by the prosecution, he reiterated that he had not seen how the murder had taken place and who committed the murder. He also reiterated that he did not see the accused there. The witness denied the prosecution suggestion that he was not ascerting true facts in view of being scared by accused persons. He also denied the prosecution suggestion that he witnessed the entire incident of commission of murder of Avadhesh Singh by present accused persons. He also stated that he had requested folded hands to Investigating Officer to spare him from to be a witness of the incident.
13. PW-4, Head Constable, Bahadur Singh, stated that he was posted in the month of April and May, 1982 at police station Atarra as Head Moharrir. On 16.5.1982, the informant Rakesh Kumar produced written report Ext.Ka-1 before him and lodged chik report on the basis of Ext.Ka-1 at 4:30 AM, on which Ext.Ka-2 was marked. He prepared this chik report in his signature and hand writing. He further stated that a special report was sent on 16.5.1982, vide GD Report No.9, at 9:30 AM by SHO Lalji Shukla to senior officials. The written entry of special report is made vide GD Report No.21, time 21:30 hours on same date. SHO Ramji Mishra was present in the police station when this case was registered and he undertook the investigation of the case. The case was registered after lodging of FIR vide GD Report No.4, on which Ext.Ka-3 is marked. The special report and its receiving report were proved by this witness as Ext.Ka-4 and 5. he filed certified copies of extracts of GD at the time of his evidence. He further stated that constable Jagdeo and Jeev Mandal made entry of their return at police station after postmortem on dead body of the deceased vide GD report No.22, time 19:30 hours, dated 17.5.1982. The Investigating Officer Shri Ramji Mishra returned to police station on 16.5.1982 alongwith both the two arrested accused persons namely, Ajai Kumar and Satish Kumar and five bundles of sealed case property and lodged them at police station and a GD entry in this regard was made by the report No.12 by him. He filed certified copy of GD Entry on record as Ext.Ka-6.
14. PW-5, Ramji Mishra, is Investigating Officer of the case. He proved steps taken during investigation. He also proved inquest report being its author as Ext.Ka-7 and stated that he conducted inquest on the body of the deceased at around 7:30 AM on the date of incident. The dead body of the deceased was lying on a bench in front of tea shop of Badku at Railway Station Atarra. After conducting inquest proceeding sent the dead body of Avadhesh Singh after preparing police papers relating to postmortem of the deceased i.e. challan lash Ext.Ka-9 and letters Ext.Ka-10 and 11 through two constables. He also got the dead body sealed after inqeust proceeding. The sleepers worn by deceased and his shirt wee sealed and their inventory was prepared which proved as Ext.Ka-12 and Ka-13 during his evidence. He also stated that he scratched the blood stains from the bench on which dead body was lying and collected the blood stained and plain pieces of wood and got them sealed separately and prepared its inventory as Ext.Ka-14. He produced these articles before the Court and on which Ext.Ka-5, 6 and 7 were marked. He also stated that he arrested accused persons on secret information at around 11:00 AM near hostel of Degree College. A .315 bore countrymade pistol and two live cartridges, and one empty cartridge shell were recovered from accused Ajay Kumar Gupta. He produced the accused persons at police station at 13:15 hours. He also stated that so long as the case property remained with him, it was in sealed condition. He also proved site plan as Ext.Ka-15 being in his hand writing and signature. He stated that after carrying out the investigation, he submitted chargesheet (Ext.Ka-16) on 1.6.1982. he also filed statement of witnesses namely, Rakesh Kumar and Krishna Pal as Ext.Ka-17 and Ka-18 during his evidence.
15. PW-5, Investigating Officer, Ramji Mishra, deposed that soon after the case was registered at the police station, he took up the investigation, that he recorded the statements of complainant Rakesh Kumar Singh and his companion Shyam Sundar and that thereafter he reached the scene of incident at about 7.30 A.M. The police station was about one kilometre away from the scene of incident and I consider that the Investigating Officer lost no unreasonable time in reaching the scene of incident in course of investigation. The Investigating Officer, as it appears from the evidence, after the inquest proceedings which were concluded at 9 A.M. ,and after making recoveries and examining other witnesses, rushed to apprehend the accused persons whose presence in the town was made known to him through his informant. He deposed that he found the two accused at about 11 A or 11.15 A.M near the hostel of Degree College in the town of Atarra and he arrested both of them. He also deposed that accused Ajai Kumar was found in possession of .315 bore country made pistol with two live cartridges and one discharged cartridge and that the accused were deposited in the police station at 1.15 P.M. on the same day. He further deposed that he again came on the spot on 18.5.82 and examined. P.W. Ramhit Singh who was summoned by him and that thereafter he prepared site-plan Ext.Ka-15.
16. PW-6, Dr. G.J. Gupta, is author of postmortem report of the deceased, who proved the postmortem report as Ext.Ka-19 and stated that he prepared this in his hand writing and signature. He in his evidence stated that deceased was around 18 years of age and there was gap of one and half day between death and postmortem. Rigor mortis had passed off from the upper extremities but it was present in small portion of lower extremities. There was onset of marks of decomposition on dead body. He elaborated antemortem injuries and internal examination of dead body. He stated that antemortem injuries found on the dead body were sufficient to cause death. These were caused by some firearm like countrymade pistol or gun. He retrieved the clothes worn on dead body and prepared a bundle and sent the same through police constables, after getting it sealed. In cross-examination, he stated that firearm injuries were caused to deceased from a distance of 5 to 6 inches. Wound of entry was found to be bigger than wound of exit, which was due to reason of decomposition. He also stated that even after death, chemical process continues in digestive system and for that reason, food does not proceed further and gets blocked on same place in the stomach. The deceased might have taken meal one or two hours before the incident.
16. Accused persons in their statement under Section 313 Cr.P.C. stated that the witnesses of fact have stated falsely against them. They are not aware about the time, place, mode and manner of the incident. There was enmity between Shiv Prasad Gupta, a family member of the accused persons and S.I. Ramji Mishra, the Investigating Officer of the case due to reason that said Shiv Prasad Gupta had published an article in his weekly publication "Gantavya Lahar" against said Investigating Officer. The said police officer falsely implicated the accused persons in this case. They were not arrested from the place where shown in the police papers but they were arrested from their home on 16.5.1982 at 8/9:00 AM. Accused Satish Kumar also stated that he was forced to testify against accused Ajai Kumar by police officials and when he declined to oblige them he was falsely implicated in the case.
17. D.W.1, Kali Charan and D.W.-2 S.U. Khan were examined as defence witnesses. D.W.-1, Kali Charan, stated that he was posted as Judicial Assistant in the collectorate. The special report is received from police station at the bungalow of District Magistrate and from there it goes in his office. He received a special report of this case on 22.5.1982, which bears signature of Sri R.C. Dixit. An order to the effect "sent to A.J.A." is appended thereon. He produced file before the court regarding special report and In its column 11, the name of arrested accused namely Ajai Kumar Gupta and Satish Kumar is mentioned. He filed a copy of special report which is marked as Ext.Ka-3. In cross-examination, this witness could not tell as to when this special report was received in the bungalow of District Magistrate.
18. D.W.-2, S.U. Khan stated that on 15/16.6.1982, he was posted as A.S.M. Head Quarter, Banda and stated that he had brought daily train cash book of Railway Station Atarra dated 15/16.5.1982, three tickets for Jhansi were sold from Railway Station Atarra on that date. These tickets were sold after 12:00 hours in the night, which is entered in register dated 16.5.1982. One ticket was valued Rs.12.50/-. He also produced train timing register, which shows that on that date i.e. 16.5.1982, Bundelkhand Express (towards Jhansi) reached at Atarra Station at 1:12 AM and departed at 1:17 AM. Bundelkhand Express reached from Jhansi at 3:23 AM at said station. He was on station duty in the night. He also stated that booking gates closed after arrival of train and no ticket can be sold to passengers after closing of booking window. The passengers get their ticket issued by T.T.E. thereafter. Sometimes passengers take journey certificate from guard after informing him.
19. Learned counsel for the appellants submitted that PW-1, Rakesh Kumar Singh, has stated at page No.28 of his evidence that he scribed the written report at police station and he has admitted that prior to writing the report (Ext.Ka-1), he was guided by the Head Muharrir as to how the report should be written. He has also stated that the barat reached at Atarra railway station from Musasi to Atarra by bus and the witness and his companions reached at Atarra station around 10:00 PM. In fact, appellants have been falsely implicated at the instance of PW-5, Ramji Mishra, the Investigating Officer.
20. He further submitted that from statement of PW-1, at page No.28, it appears that the FIR has been lodged at the instruction of police and not in natural manner. The witnesses are not reliable. PW-1 has stated that marriage party left the railway station Atarra by Bundelkhand Express whereas PW-2, Ramhit, has stated that marriage party left from Atarra railway station to Banda by passenger train, which is material contradiction in their mutual statements at certain points. PW-2, has stated tat page No.35 in his evidence that he had purchased 15 tickets from Atarra to Jhansi for Bundelkhand Express for Rs.156/-, paid by Raja Singh whereas D.W.-2, the Assistant Station Manager, who is an independent and official witness has stated that in the intervening night of 15/16.5.1982, only three tickets were sold for Railway Station Atarra to Jhansi. D.W.-2 als sated that the value of one ticket is Rs.12.50/-. Thus, total value of 15 tickets accordingly comes to Rs.187.50/- and not Rs.156/-, as told by PW-2. The prosecution evidence is also very much discrepant inasmuch as the key witness Raj Singh, who was host of marriage ceremony of his sister has not been produced in evidence. Even, none of the members of the marriage party (barat) was examined in support of prosecution case. He further submitted that PW-1, has stated that he purchased tickets for themselves from railway station Atarra to railway station Khurhand but this fact has been denied by PW-2 and he has stated that he had not purchased any ticket for himself and his companions. PW-1 has stated in his cross-examination that marriage party came from the village to railway station by bus whereas PW-2 has stated that it came by a tractor from village to railway station. Thus, the prosecution version that witnesses escorted the barat from Atarra railway station to Khurhand is completely absurd and does not appeal to common sense. PW-1 has denied that he had seen the actual incident of firing allegedly made by accused Ajai Kumar Gupta upon deceased and has stated that he had only seen back posture of accused persons while they were fleeing away.
21. Learned counsel for the appellant further submitted that above discrepancies in the testimony of the witnesses strongly suggests that they had not seen the incident of killing of deceased Avadhesh Singh and they have falsely testified before the Court inasmuch as the appellants had no motive to commit the murder of deceased and they have been falsely implicated at the behest of PW-5, Ramji Mishra, the Investigating Officer of the case. Real facts of the case are that one Shiv Prasad Gupta, Editor of weekly newspaper 'Gantavya Lahar', who was uncle of accused Ajai Kumar Gupta, on 22.9.1981 and 29.9.1981 had published certain news items in said newspaper against PW-5, Ramji Mishra, the Investigating Officer of the case, which was taken by him as defamatory and therefore, he filed a complaint against said Shiv Prasad Gupta on 29.9.1981 and because of this, he was harbouring ill will against Shiv Prasad Gupta and his family members. Appellant Satish had filed an FIR against co-accused Ajai Kumar Gupta under section 324 IPC prior to this incident. Accused Satish Kumar Gupta had stated that Ramji Mishra came to his house and asked Satish to become a witness against Ajai Kumar Gupta and appellant Satish declined the request made by Ramji Mishra to become a witness against Ajai Kumar Gupta and for that reason, he has been falsely implicated in the case.
22. Learned counsels for the appellants lastly submitted that both the appellants had raised plea of juvenility during pendency of present appeal. The plea of Juvenility raised by appellant Satish Kumar Gupta was declined by learned Session Judge, Banda on a reference made by this Court vide his Inquiry Report dated 20.4.2022 but the plea of juvenility raised by appellant Ajai Kumar Gupta was accepted in Juvenile Inquiry Report submitted by learned Session Judge, Banda to the Court on a reference made by this Court in this regard. Therefore, the order in respect of appellant Ajai Kumar Gupta may passed under provisions of Juvenile Justice (Care and Protection of Children) Act, 2000 and not under provisions of Indian Penal Code.
23. Learned counsel for the appellants placed reliance on a jugement of Hon'ble Apex Court in State of U.P. and Another vs. Jaggo @ Jagdish and others, AIR 1971 SUPREME COURT 1586, wherein it is held that It is true that all the witnesses of the prosecution need not be called but it is important to notice that the witness whose evidence is essential to the "unfolding of the narrative" should be called. This salutary principle in criminal trials has been stressed by this Court in the case of Habeeb Mohammad vs. The State of Hyderabad, 1954 SCR 475 for eliciting the truth. Hon'ble Apex Court further observed in paragraph No.16 of the judgement as under:-
"16. This Court in Habeeb Mohammad's case, (supra) referred to the observations of Jenkins, C.J. in Ram Ranjan Roy v. Emperor ILR 42 Cal 422 : AIR 1915 Cal 545 that the purpose of a criminal trial is not to support at all costs a theory but to investigate the offence and to determine the guilt or innocence of the accused and the duty of a public prosecutor is to represent the administration of justice so that the testimony of all the available eye-witnesses should be before the Court Lord Roche in Stephen Seneviratne v. The King AIR 1936 PC 289, referred to the observations of Jenkins, C.J. and said that the witnesses essential to the unfolding of the narrative on which the prosecution is based must be called by the prosecution whether the effect of their testimony is for or against the case for the prosecution. That is why this Court in Habeeb Mohammad's case, (supra) said that the absence of an eye witness in the circumstances of the case might affect a fair trial On be half of the appellant it was said that Ramesh Chand was won over and therefore the prosecution could not call Ramesh. The High Court rightly said that the mere presentation of an application to the effect that a witness had been won over was not conclusive of the question that the witness has been won over. In such a case Ramesh could have been produced for cross-examination by the accused. That would have elicited the correct facts. If Ramesh were an eye-witness the accused were entitled to test his evidence particularly when Lalu was alleged to be talking with Ramesh at the time of the occurrence."
24. Learned counsel for the appellant cited another judgement of Hon'ble Apex Court in Shahid Khan vs. State of Rajasthan, 2016 0 Supreme (SC) 210, wherein it is held that the delay in recording the statements casts a serious doubt about their being eye-witnesses to the occurrence. It may suggest that the investigating officer was deliberately marking time with a view to decide about the shape to be given to the case and the eye-witnesses to be introduced.
25. Per contra, learned AGA submitted that there are no material discrepancies or infirmity it the evidence of witnesses of fact. Learned trial court has made a thread bear analysis of the evidence on record while passing the impugned judgment, which formed basis of conclusion of guilt of accused appellants. The contradictions pointed out by learned counsel for the appellants are not of material nature, which may have a potential of making the prosecution version suspicious or doubtful. Learned trial court has rightly observed that ticket less travels are not uncommon in this country.
26. In present case, accused Ajai Kumar Gupta had pleaded animosity between PW-5, Ramji Mishra, the Investigating Officer and his uncle Shiv Prasad Gupta, who is a journalist, as a reason to falsely implicate him in the case but he could not bring any fact or circumstance to suggest that PW-5 was having any grudge or indignation against the accused Ajai Kumar Gupta himself. The deceased died on the spot due to gun shot injuries by firearm in the incident, which is proved to have taken place at 4:00 Am on 16.5.1982. The FIR was lodged on the same date at 4:30 AM. The distance of police station from place of occurrence is shown as one kilometer in chik FIR (Ext.Ka-1), thus, the FIR in the case has been lodged at utmost promptitude without any delay, which keeps credence to its version and also gives up any likelihood of embroidery, afterthought or embellishment. Learned counsel for the appellant contended that this version of PW-2 that he had purchased tickets of 15 members of marriage party from Atarra to Jhansi for Rs.156/- which was advanced by Raj Singh to him whereas DW-2, the Releaving Assistant Station Master posted at Atarra Railway Station in the fateful night i.e. 15/16.5.1982 stated that the Bundelkhand Express train reached at Atarra railway station at 1:12 AM and left the station at 1:17 AM by producing the relevant register. He has also stated that in that night only three tickets were sold from Atarra to Jhansi, thus, this version of PW-2 gets falsify that he had purchased 15 tickets and that too it costs for Rs.156/- whereas DW-2 had stated that one ticket costs Rs.12.50/- only. Thus, the value of 15 tickets comes Rs.187.50/-. Here this fact is also noticeable that DW-2 has admitted that sometime the ticket window is closed after arrival of train and passengers purchased the ticket from T.T.E. in the train and after informing the train guard while travelling in train. Here, learned trial court has rightly observed that the question whether the barat party and the persons who were escorted them were bonafide person or not is of little significance in this case and I considered that in prosecution case that the barat party leave the Atarra railway station for that night is not shaken in the lease. Learned trial court has also observed correctly that it is "also borne out from the evidence that DW-2, S.U. Khan that the Bundelkhan via Jhansi left Atarra at 1:17 Am and the other Bundelkhand from Jhansi reach Atarra railway station at 3:23 AM, thus, the case of the prosecution that deceased, PW-1, PW-2, deceased Avadhesh and Shyam Sundar escorted the barat and came back from said Bundelkhand Express and unboarded the train at about 4:00 Am (approximately), finds support from the aforesaid evidence.
27. Learned trial court has rightly observed that the contradiction pointed out in statement of PW-2 that in his earlier statement and under Section 161 Cr.P.C., he had attributed role of referring the deceased by calling his mother's name and before the Court by calling him by his sister's name in role attributed to accused Satish Kumar is not of much significance and the defence has laid undue importance on these factors.
28. So far as the motive is concerned, as the case is based on direct evidence of witnesses of fact and PW-2 has given eye-witness account of sequence of events which led to homicidal death of Avadhesh Singh. Only reason that the prosecution failed to suggest any motive against the accused persons will not defeat the prosecution case. On facts of the case, this is trite law that in case of direct evidence, motive loses its significance to great extent. In fact motive is a mental factor which lies in the mind of assailant/culprit and there is an old adage that even devil cannot read out the mind of a person. In Bible, it is stated that only God knows thou thoughts. It is quite natural that the accused persons could have been harbouring some grudge or indignation against the deceased and driven by that, they engaged in commission of murder of deceased Avadhesh Singh, due to indiscretion in any manner, the reason of false implication at the behest of PW-5, narrated by the accused persons in their statement under Section 313 Cr.P.C., does not hold good on facts of the case. The only reason assigned by accused Satish Kumar for his false implication is that the police wanted to project him as a witness against accused Ajai Kumar and when he refused to oblige them, he was also falsely implicated in this murder case and was arrested from his home in the early hours of 9:00 AM on 16.5.1982.
29. PW-1 has slightly deviated from his earlier statement under Section 161 Cr.P.C. while testifying before the Court. In his statement under Section 161 Cr.P.C. recorded by Investigating Officer, he stated that he witnessed the incident in presence of witnesses Ramhit Singh (PW-2) and Shyam Sundar. He has also stated in his evidence before the court that the contents of Ext.Ka-1 were truly recorded by him but he has stated in his evidence that he had not seen the accused persons firing shot at deceased, but he had seen Ajay and Satish fleeing away from the place of incident and notices their back posture and he had not seen nothing in their hand. This witness was cross-examined by public prosecutor after declaring hostile, in which he stated certain more things which is supportive of prosecution case. He acknowledged entire contents of Ext.Ka-1, the written report which formed basis of lodging of FIR, as its author. He also stated that when Ajay Kumar and Satish Kumar met him, Satish Kumar was having iron rod in his hand. However, he further stated that eye-witness account given by witnesses Shyam Sundar and Ramhit were narrated by him in Ext.Ka-1. He did not see the incident at his own. He also stated that he had stated the true version of the incident to the Investigating Officer. If we go through the entire testimony of PW-1, we find that he is trying to conceal the fact that he had witnessed the incident himself for reasons best known to him or under influence of accused side. This witness has named the accused persons in his written report Ext.Ka1, just after the commission of the offence but in cross-examination by defence, he has wrongly stated that prior to the incident, he had never seen the accused persons and was not acquainted with them. He has also stated that he had seen the accused persons in police lockup on 16.5.1982, at about 11:30 AM and he came to know the name of the accused persons for the first time at police station. He admitted that police proceeded to the place of occurrence just after lodging of the FIR at around 10:00 to 10:30 AM. The witness has stated that he reached at the place of incident after hearing sound of fire from a tea shop and found Avadhesh Singh in dead condition on the bench. Ramhit and Shyam Sundar were standing there. He saw Ajay Kumar and Satish Kumar taking to their heels from 15 to 20 paces. He has also sated that the master of barat had purchased full tickets. This is prosecution case that this witness as well as other witnesses, deceased and accused were present on the tea shop and this witness has also stated that he ran from tea shop to the place of incident after hearing the noise of firearm shot, thus, this version has corroborated the prosecution case that this witness was present on the spot and not only this, he has categorically stated that just after the incident, he found witnesses Ramhit and Shyam Sundar on the spot where Avadhesh was found dead on bench.
30. In FSL Report, human blood was found on shirt, banyan, underwear and pant recovered from the dead body as well as pieces of wood which were taken from the bench, on which dead body was lying after the incident. This scientific evidence corroborates the testimony of witnesses of fact with regard to place of occurrence, which is also proved by statement of PW-5, who prepared and proved the site plan of the place of incident, which is marked as Ext.Ka-15. PW-5 also filed statements of witness Rakesh Kumar and Krishan Pal on record during his testimony before the Court, which are marked as Ext.Ka-17 and 18. Although, these cannot be treated as piece of evidence in view of bar of proviso to Section 162 Cr.P.C. but these statements are permitted to be used by defence to point out contradictions in the statement of the witnesses before the Court.
31. Proviso to Section 162 Cr.P.C. also permits the prosecution to contradict such witness in the manner provided under Section 145 of Indian Evidence Act, 1972. Thus, so far as pointing out contradiction in sworn testimony of a witness from his earlier statement recorded during investigation is concerned the prosecution and defence both are afforded an equal opportunity under proviso to Section 162 Cr.P.C. The only difference is that for pointing out such contradiction in sworn testimony of the witness before the court from his earlier statement, the prosecution will have to seek permission of the court and in present case, the prosecution has pointed out contradiction in the statement of PW-1 before the court from his earlier statement recorded by the Investigating Officer.
32. In view of foregoing discussion and re-appreciation of evidence in the light of contention raised on behalf of the appellants, we are of the considered inference that the prosecution has been able to prove its case beyond reasonable doubt that on 16th of May, 1982, at about 4:00 AM in front of tea shop of Badku, situated nearby gate of Atarra Railway Station, the accused persons knowingly and intentionally committed murder of Avadhesh Singh in furtherance of common intention shared by both of them. The fatal shot was fired by accused Ajai Kumar Gupta on exhortation of accused Satish Kumar Gupta. The single shot fired by accused Ajai Kumar resulted in instantaneous death of deceased Avadhesh Singh. From medical evidence, it is crystal clear that the injuries suffered by the deceased were sufficient to cause death. Thus, on reappreciation of evidence, we find no factual or legal error in appreciation of evidence undertaken by learned trial court by passing the verdict of guilt and awarding sentence permissible under law against the appellants. The appeal so far as conviction of the appellant for charge under Section 34 read with Section 34 IPC is concerned is devoid of merits and deserves to be dismissed. However, at this stage this fact is pertinent to be mentioned that during pendency of appeal before this Court, plea of juvenility was raised by both the appellants and the plea of juvenility raised by appellant Satish Kumar Gupa was rejected by Session Judge, Banda vide order dated 20.4.2022, to which a reference was made by this Court to enquire into plea of juvenility raised by him, but learned Session Judge, Banda, allowed the plea of juvenility raised by Ajai Kumar Gupta before this Court on a reference made by this Court. Both the appellants were released on bail on filing of present appeal. Appellant Ajai Kumar Gupta was held twice as juvenile in conflict of law by Session Judge, Banda on a reference made by this Court, vide Inquiry Report dated 6.9.2012, which was subsequently set aside by order dated 13.7.2023 passed by this Court as a Criminal Revision (Defective) No.68 of 2022 was filed by the complainant against inquiry report dated 6.9.2022, submitted by Session Judge, Banda and on no objection raised by learned counsel for the appellant, on premises that if an opportunity is afforded by the Session Judge, Banda to the complainant and the State to objection with regard to inquiry and determination of juvenility of the accused appellant pursuant to the order dated 6.4.2012 of this Court. Vide order dated 13.7.2023, this Court directed the Session Judge, Banda to proceed to determine the juvenility of the accused appellant Ajai Kumar Gupta and submit his report, with the consent of learned counsel for the parties and on statement of learned counsel for the complainant that he shall withdraw the aforesaid defective revision filed against inquiry report in question dated 6.9.2012. An office report dated 10.10.2023 is appended in ordersheet to the effect that in compliance of Court's order dated 13.7.2023, thus, Additional Session Judge, Banda has submitted a report dated 22.9.2023 (Flag 'Q'), wherein it is said that the appellant Ajai Kumar Gupta was juvenile at the time of incident.
From perusal of second Inquiry Report dated 21.9.2023, Special Judge, POCSO Act/Additional Session Judge, Banda, it appears that the learned Session Judge held the age of the appellant Ajai Kumar Gupta as 15 years and 6 months on the date of incident dated 6.5.1982 and, therefore, the appellant was declared juvenile in conflict of law on the date of incident. In terms of Section 2(l) of The Juvenile Justice (Care and Protection of Children) Act, 2000, which was found to be applicable in present case, as date of occurrence in present case is shown as 16.5.1982 and for that reason, learned Session Judge has rightly observed that The Juvenile Justice (Care and Protection of Children) Act, 2015 as effective from 15.1.2016 will not be applicable in present case because the incident took place prior to the enforcement of new Act.
30. Section 2(k) of The Juvenile Justice (Care and Protection of Children) Act, 2000 defines "Juvenile" as follows:-
'juvenile' or 'child' means a person who has not completed eighteenth year of age.
31. The definition of "juvenile in conflict of law" under Section 2(l), which stood amended in 2006 is as follows:-
"(l) 'juvenile in conflict with law' means a juvenile who is alleged to have committed an offence and has not completed eighteenth year of age as on the date of commission of such offence."
32. Undoubtedly, the appellant has been assigned main role in the offence as author of the wound of gunshot, which turned fatal to the deceased, yet this is trite law that plea of juvenility can be raised by an accused or convict at any stage of investigation, inquiry, trial or appeal and once he has been held to be juvenile by competent court or Juvenile Justice Board, as the case may be, even after finding of a verdict of guilt against him, the final order will be governed by Section 15 of The Juvenile Justice (Care and Protection of Children) Act, 2000, which is a statute in parimateria of Section 18 to present enactment on the subject i.e. The Juvenile Justice (Care and Protection of Children) Act, 2015.
33. Section 15, 16 and 18 of Juvenile Justice (Care and Protection) Act, 2000, provides as under:-
"15. Order that may be passed regarding juvenile (1)Where a Board is satisfied on inquiry that a juvenile has committed an offence, then, notwithstanding anything to the contrary contained in any other law for the time being in force, the Board may, if it so thinks fit-
(a)allow the juvenile to go home after advice or admonition following appropriate inquiry against and counselling to the parent or the guardian and the juvenile;
(b)direct the juvenile to participate in group counselling and similar activities;
(c)order the juvenile to perform community service;
(d)order the parent of the juvenile or the juvenile himself to pay a fine, if he is over fourteen years of age and earns money;
(e)direct the juvenile to be released on probation of good conduct and placed under the care of any parent, guardian or other fit person, on such parent, guardian or other fit person executing a bond, with or without surety, as the Board may require, for the good behaviour and well-being of the juvenile for any period not exceeding three years;
(f)direct the juvenile to be released on probation of good conduct and placed under the care of any fit institution for the good behaviour and well-being of the juvenile for any period not exceeding three years;
(g)[ make an order directing the juvenile to be sent to a special home for a period of three years:
Provided that the Board may, if it is satisfied that having regard to the nature of the offence and the circumstances of the case, it is expedient so to do, for reasons to be recorded, reduce the period of stay to such period as it thinks fit.
(2)The Board shall obtain the social investigation report on juvenile either through a probation officer or a recognised voluntary organisation or otherwise, and shall take into consideration the findings of such report before passing an order.
(3)Where an order under clause (d), clause (e) or clause (f) of sub-section (1) is made, the Board may, if it is of opinion that in the interests of the juvenile and of the public, it is expedient so to do, in addition make an order that the juvenile in conflict with law shall remain under the supervision of a probation officer named in the order during such period, not exceeding three years as may be specified therein, and may in such supervision order impose such conditions as it deems necessary for the due supervision of the juvenile in conflict with law:Provided that if at any time afterwards it appears to the Board on receiving a report from the probation officer or otherwise, that the juvenile in conflict with law has not been of good behaviour during the period of supervision or that the fit institution under whose care the juvenile was placed is no longer able or willing to ensure the good behaviour and well-being of the juvenile it may, after making such inquiry as it deems fit, order the juvenile in conflict with law to be sent to a special home.
(4)The Board shall while making a supervision order under sub-section (3), explain to the juvenile and the parent, guardian or other fit person or fit institution, as the case may be under whose care the juvenile has been placed, the terms and conditions of the order and shall forthwith furnish one copy of the supervision order to the juvenile, the parent, guardian or other fit person or fit institution, as the case may be, the sureties, if any, and the probation officer.
16. Order that may not be passed against juvenile (1)Notwithstanding anything to the contrary contained in any other law for the time being in force, no juvenile in conflict with law shall be sentenced to death [or imprisonment for any term which may extend to imprisonment for life] or committed to prison in default of payment of fine or in default of furnishing security:Provided that where a juvenile who has attained the age of sixteen years has committed an offence and the Board is satisfied that the offence committed is so serious in nature or that his conduct and behaviour have been such that it would not be in his interest or in the interest of other juvenile in a special home to send him to such special home and that none of the other measures provided under this Act is suitable or sufficient, the Board may order the juvenile in conflict with law to be kept in such place of safety and in such manner as it thinks fit and shall report the case for the order of the State Government.
(2)On receipt of a report from a Board under sub-section (1), the State Government may make such arrangement in respect of the juvenile as it deems proper and may order such juvenile to be kept under protective custody at such place and on such conditions as it thinks fit:
[Provided that the period of detention so ordered shall not exceed in any case the maximum period provided under section 15 of this Act.]
18. No joint proceeding of juvenile and person not a juvenile-
(1)Notwithstanding anything contained in section 223of the Code of Criminal Procedure, 1973 (2 of 1974) or in any other law for the time being in force, no juvenile shall be charged with or tried for any offence together with a person who is not a juvenile.
(2)If a juvenile is accused of an offence for which under section 223 of the Code of Criminal Procedure, 1973 (2of 1974) or any other law for the time being in force, such juvenile and any person who is not a juvenile would, but for the prohibition contained in sub-section (1), have been charged and tried together, the Board taking cognizance of that offence shall direct separate trials of the juvenile and the other person.
34. Section 16 of the Act strictly prohibits the sentencing a juvenile in conflict in law to death or imprisonment for any term, if may extend in term for life or committed to prison in default of fine or in default of furnishing of security. Section 18 provides that no joint proceeding of juvenile and a non juvenile shall be undertaken. Thus, in present case, although we affirm the verdict of guilt for charge under Section 302 IPC recorded against the appellant Ajai Kumar Gupta by learned trial court yet the sentence passed against him is set aside for reasons stated, as above, as he has been declared juvenile in conflict of law by learned Session Judge on reference made by this Court during penency of this appeal and we direct the appellant Ajai Kumar Gupta, the juvenile in conflict of law, to be enlarged on probation of good conduct under Section 15(l) of the Act, 2000 on furnishing a personal bond and two sureties in the like amount in prescribed form to the satisfaction of concerned Session Court within a period of 10 days from today with undertaking to maintain peace and good behaviour and to abstain from indulging any criminal activity during period of three years' probation bond. It is also directed that Session Court shall forward a copy of this operative order in respect of said juvenile/appellant to District Probation Officer, Banda, under whose supervision and observation the appellant will remain for a period of 3 years, as directed and will apprise the Court concerned regarding conduct and behaviour of the juvenile, if found contrary to the conditions of the probation bond.
35. Accordingly, Criminal Appeal No.705 of 1983, stands dismissed and the conviction and sentence passed against the appellant Satish Kumar Gupta in impugned judgement is hereby affirmed and the Criminal Appeal No.573 of 1983 stands partly allowed in respect of sentence awarded to appellant Ajai Kumar Gupta as directed above. He need not surrender.
36. Appellant Satish Kumar Gupta has been enlarged on bail by orders of this Court passed in present criminal appeal. Therefore, he is directed to immediately surrender before the Court of Sessions Judge, Banda to undergo the sentence awarded in impugned judgement dated 4.3.1984. In case of failure of the appellant to surrender before the trial court concerned, the trial court shall compel the appearance of the appellant by issuing appropriate coercive process against him and on being apprehended/appearance before the court as the case may be, he will be sent to jail for undergoing the sentence of life imprisonment as awarded in impugned judgement.
37. Let lower court record be sent back to court concerned within a period of two weeks from today alongwith certified copy of this order for information/necessary compliance.
Order Date :- 05.04.2024 Kamarjahan