CRIMINAL APPEAL No.261 OF 2002 Against the judgment of conviction and order of sentence dated 18.4.2002 and 24.4.2002 passed by 2nd Additional Sessions Judge, Bhojpur, Arrah in Sessions Trial No. 35 of 1992. JHAMAN YADAV-------------------------------------------------Appellant Versus STATE OF BIHAR---------------------------------------------Respondent ----------- For the appellant: Mr. Vikram Deo Singh, Advocate Mr. Raj Bansh Dubey, Advocate For the State: Mr. Ashwini Kumar Sinha, APP P R E S E N T THE HON'BLE SRI JUSTICE DHARNIDHAR JHA THE HON'BLE SRI JUSTICE RAKESH KUMAR Dharnidhar Jha & Rakesh Kumar, JJ The solitary appellant Jhaman Yadav was tried along with three others for a charge under Section 302/34 of the Penal Code by the learned Additional Sessions Judge, 2nd Court, Bhojpur at Ara in Sessions Trial No.35 of 1992. While the other three accused persons were acquitted of the above charge, the appellant was held guilty of committing an offence under Section 302 of the Penal Code by the impugned judgement and was directed to suffer rigorous imprisonment for life by the order of sentence passed on 24.4.2002. The appellant has questioned the propriety of the finding and sentence through the present appeal. 2. The necessary facts of the case may be noticed. 3. P.W.5 Kanhaiya Singh gave his fardbeyan at 2 village Chandi in the fields stating therein that he was irrigating his wheat field by a pump set which was fitted with the tubewell. His father was sitting near the machine. In the meantime, P.W.3 Sheo Kumar Singh and the sister of P.W.5, namely, Bindu Devi(not examined) arrived there with breakfast for the father and son. In the meantime, four accused persons named in the FIR came near the deceased, Dhiraj Singh who was sitting near the machine. Accused Sheo Nandan Yadav wanted to know whether his field could also be irrigated, upon which the deceased stated that it could be only when his field had been irrigated. 4. It is alleged that the four accused persons lost their temper and this appellant Jhaman Yadav after pulling out a pistol from his waist, fired a shot hitting the deceased Dhiraj Singh on his left scapula as a result of which he was injured and fell down. The accused persons made good their escape. The deceased was wreathing in pain and was found bleeding from his mouth and nose and died there at the spot. P.W.5 stated that while he was arranging to take his father to the police station, the police came to record his fardbeyan in the meanwhile. 5. As regards the reason for the occurrence it was alleged that the offence had been committed by the accused on account of enmity due to land dispute. 3 6. On the basis of the fardbeyan (Ext-4) the FIR of the case (Ext-8) was drawn up by P.W.6, Braj Kishore Kumar who has stated in his evidence that he had initially picked up a rumour of some quarrel and someone being hit by a fire arm. P.W.6 Braj Kishore Kumar stated that he proceeded from his police station to verify the truthfulness of the rumour and found, on reaching the place of occurrence, that a man was lying dead and P.W.5 was there whose statement was recorded by him. Thereafter the inquest report, Ext.5 was prepared and the dead body was forwarded to the police station for postmortem examination. P.W.6, thereafter, returned to the police station for instituting a case thereon and this is how Ext.8 the FIR was drawn up. 7. P.W.6 again came back to the place of occurrence and inspected it and found a boring and a machine installed at the field of the informant. Besides, he found a Palani(shade)created there for resting the man, who could be deputed there for watching the installations of the tubewell and the machine. The field of the deceased was also found situated there which had wheat crop standing over it. The investigating officer found blood fallen on the ground and he seized the same after preparing the seizure memo Ext-6. He also prepared a sketch map of the place of occurrence which has been marked by the court below as Ext.7. P.W.6 recorded the statements of different witnesses and finding 4 material sufficient against the accused persons, sent them up for their trial which ultimately ended in the judgement impugned herein. 8. The defence of the accused persons was that they were innocent and had falsely been implicated by the informant or his Mama P.W.3 on account of the admitted land dispute. 9. During course of the trial the prosecution examined a total number of seven witnesses out of whom P.W.2 a witness to the seizure of blood was declared hostile as he denied anything being seized in his presence though he admitted his signature on Ext-6. Likewise, P.W.4 Ram Ashish Rai was also declared hostile because while giving his evidence he supported the fact that deceased Dhiraj Singh had been shot and killed on the date of occurrence, i.e., 26.1.1999 at around 2 P.M. but he did not specify the names of any of the accused persons. P.W.1 Jagdish Pd. Singh is also a witness to the seizure of blood stained earth and the preparation of the seizure memo Ext-6 and has supported the factum of seizure made by P.W.6, S.I. Braj Kishore Kumar. P.W.3 Sheo Kumar Singh is the maternal uncle of P.W.5. The informant had supported the prosecution version in its totality. P.W.7 Dr. Manoj Kr.Ranjan had held the postmortem examination on the dead body of the deceased Dhiraj Singh and prepared the report Ext-9. 5 10. The defence did not examine any witness. 11. On consideration of the prosecution evidence the learned trial Judge came to a conclusion that except the appellant the complicity of other accused persons was not established beyond doubt and as such extended the benefit thereof to the remaining three accused persons and finding that the solitary appellant was accused of firing the shot recorded a finding of guilt as against him and passed the judgement as indicated at the very outset of the present judgement. 12. We have heard Sri Vikram Deo Singh learned counsel appearing for the appellant who has, firstly, drawn our attention towards the report which was sought to be submitted by the trial court to this court by order passed by this court on 29.3.2007 on the question of juvenility which question the appellant had raised during the course of hearing of the present appeal we have considered that report and we are likely to discuss the effect thereof a bit later. As regards the merits of the present appeal Sri Singh was contending that as regards the evidence of P.W.3 Sheo Kumar Singh, the maternal uncle of the informant, it appears that his presence could not be acceptable to the court inasmuch as the reason assigned by him for coming to the place of occurrence does not inspire confidence. As regards the evidence of P.W.5 Kanhiaya Singh it was contended that the 6 evidence of the informant also suffers from inherent infirmity. Probability may be that he was not present at the scene of occurrence and had lodged the report from imagination so as to implicating his old enemies. Sri Singh took us through the evidence of witnesses and contended that even if the court comes to the conclusion that it could be the act of the appellant, which had caused the death of the deceased Dhiraj Singh it could be an act which could be said not committed by the degree of intention or knowledge which is required for establishing the ingredients of the offence under Section 302 of the Penal Code. It was suggested to this court that the conviction, if upheld, may be under the provisions of Section 304 of the Penal Code. 13. As against the above, Sri Ashwini Kumar Sinha, the learned Additional Public Prosecutor has submitted that there is no reason to discard the evidence either of P.W.3 or P.W.5. It was contended that even the evidence of hostile witness P.W.4 Ram Ashish Rai goes to indicate that indeed there was an incident of murder about the time of occurrence. It was contended that the manner of occurrence has been substantiated by the evidence of P.W.7 Dr. Manoj Kr. Ranjan and the objective findings of the I.O., P.W.6, further lends credence to the prosecution story. It was contended that the complicity of the appellant stood established beyond any pale of doubt. 7 14. The credibility of P.W.3 Sheo Kumar Singh was challenged before us by Sri Singh, the learned counsel appearing for the appellant on a couple of grounds, the first being that the utensils in which his breakfast for the deceased and the informant was brought were not found by the I.O. of the case. The witnesses during their cross- examination have admitted that they did not show the utensils to P.W.6 in which P.W.3 brought the breakfast. It was contended, as such, that the very reason for which P.W.3 claims coming to the place of occurrence appears not established and as such the very presence of P.W.3 becomes doubtful. 15. It is true that both P.Ws.3 and 5 have stated that they did not show either the container in which the breakfast was brought or the utensils like plates which was brought for feeding the deceased and P.W.5, but that may not be sufficient to throw the prosecution case to the winds. The reason available to us comes from the evidence of P.W.7 Dr. Manoj Kumar Ranjan. It may be profitable to have a glance of the evidence of P.W.7 Dr. Manoj Kr. Ranjan who held postmortem examination on the dead body of deceased Dhiraj Singh on 27.1.1991. The doctor has stated that he found an ante mortem lacerated wound measuring ½”x1/2” circular in shape with inverted margin on the left arm and upper part of the chest. On dissection the doctor found the 8 second and third ribs over the axillary region fractured and the lungs on the left side on its upper to be lacerated. The metallic bullet was recovered from right side of the chest. The opinion of the doctor is that the death had occurred on account of above noted injury within 36 hours of holding the postmortem examination and the injury was sufficient to cause death in the ordinary course of nature. 16. We are not concerned much about the above opinion rendered by the doctor on the nature of the injury and the nature of the weapon which caused the injury and ultimate result thereof. We are mainly concerned for the present discussion on the competence of P.W.3 being an eye witness with that part of evidence of P.W.7 which indicates that ‘stomach was found containing about four ounces of semi digested food materials with gastric juice’. What we want to note is that the deceased had not taken anything or that he could be hungry for some time is reasonably established by the above part of the evidence of P.W.7 so the claim of the prosecution that there could be need for some one to come to the place of occurrence with some food which could be provided to the deceased appears reasonably acceptable. 17. There is no material on the record that there was any other family member in the family of the deceased except P.W.5 and his only sister, Bindu Devi. This could be the reason that P.W.3 who was not residing far from the 9 village of the deceased and was very often visiting him and, to us, appears attending to his ordinary cores which was necessarily connected with the agricultural operations. The evidence of P.W.3 states that he had just arrived at the house of the deceased, he did not take a morsel of meals or even a gulp of water and he picked up the food for the deceased and walked to the fields. To us the above conduct of P.W.3 and the evidence in that behalf appears acceptable. This could be the ordinary conduct of a person who is so deeply related to the deceased. P.W.3 was the brother-in-law (sala)of the deceased and the locality from where this case has been recorded, that particular relationship is valued like anything. It must not have been unusual that after being informed that the deceased was hungry till about 2 P.M., P.W.3 could not have stopped himself to ensure that the deceased got comforted by taking some meals and, as such, could have felt the urge inside him to take the food prepared for the deceased and the informant and rushed to the place of occurrence. 18. The state of P.Ws.3 and 5 which could have appeared after the deceased was shot and killed and could well be imagine. The relationship which P.Ws.3 and 5 had with the deceased could have unnerved them when they had found offence being committed in their very presence. They must have lost the common sense to show to the I.O., the 10 containers or the utensils with the food which had been brought by P.W.3 to the place of occurrence for feeding the deceased and the informant. Above all, there is no suppression in law and criminal jurisprudence, that they should have conducted themselves in a manner as to assisting the investigation on all its aspects. After all it was the duty of the I.O. to investigate a case. It was not the duty of the P.W.3 to do it. If the I.O. of the case was overlooking a simple aspect of the case, for that we could not throw out the evidence of P.W.3 by branding him as a liar, who was giving evidence in spite of not being present at the place of occurrence. 19. For the reasons which we have just assigned, we find that the presence of P.W.3 Sheo Kumar Singh could be accepted at the place of occurrence. 20. As regards the evidence of P.W.5 Kanhaiya Singh, the learned counsel for the appellant was attacking his evidence mainly on the ground as to why the appellant could be firing a shot and killing his father because, he did not have any direct motive for committing the offence. One need not point out that in a case of direct evidence, even if there is no intention pleaded or no motive assigned, the charges could be held proved. Moreover, the occurrence had taken place on 26.1.1991 and P.W.5 was examined on 15.4.1993, i.e., after about two years. The age of this 11 witness as recorded by the court and as given by him was 16 years. He was a child around 14 years when the incident had taken place. Our experience shows that matters of enmity, matters of dispute and specially when it related to properties, are not generally shared by fathers with growing children. They deal with these situations on their own and rarely a father could be found sharing the mental burden of his in relation to such matters with his growing children. The reason is to leave aside the child, so that he prosecutes his own vocation. This could be the reason that P.W.5 Kanhaiya Singh could not be implicating a person who could not have indulged into the offence. He has stated in his evidence that he did not know for what land, the dispute was there and further that any case had been lodged in respect of that dispute. Such knowledge, we have just discussed may not be coming to him. He could be having an idea of difference with a neighbor or a co-villager on account of picking up the dispute after hearing it from his family members. We do not see any compelling motive in P.W.5 Kanhaiya Singh so as to implicating an innocent person as we have just pointed out, his evidence on that account cannot be discarded. 21. Coming to the evidence generally of the witnesses, P.W.5 has narrated the story in court as appears narrated by him fundamentally in Ext-4 the fardbeyan. That 12 appears supported by P.W.3 Sheo Kumar Singh almost on all material parts of it. Further support comes from an independent source like P.W.4 Ram Ashish Rai who, though not named any of the accused, has given evidence that deceased Dhiraj Singh was shot and killed around 2 P.M. on 25.1.1991. The site of occurrence also appears stated by P.W.4 Ram Ashish Rai when he stated that his field was near the field where Dhiraj Singh was killed. Thus, after going through the evidence of P.Ws.3 and 5 in tandem with that of P.W.6 the investigating officer of the case, who has recorded objective findings like the finding of blood at the place of occurrence, the finding of tube-well and the installed machine and, further, the finding that the field was filled with wheat crop, We find it very difficult for us to concede` to the argument made by Sri Singh that the appellant had been wrongly convicted. We up-hold his conviction as recorded by the learned trial Judge. 22. This brings us to consider the report submitted by the learned trial court on the plea of juvenility raised by the appellant. After perusal of the report which appears at flag-B of the record of the present appeal, we find that no document like a school leaving certificate or admission register or any other record indicating the date of birth of the appellant was produced before the learned Judge who made the report. As a result of 13 which the learned Judge directed the constitution of a Medical Board for assessing the age of the appellant and accordingly, the appellant was produced before the board on 28.2.2008 and a report was submitted by the board to the court on 3.3.2008. The medical board was of the opinion that on 28.2.2008 the appellant could be aged above 25 years and below 30 years. We are very much alive to the situation that the evidence on age which could be in favour of the appellant has to be accepted. Thus, we have to read the age of the appellant below 30 years or around 25 years. Even if we accept the age of the appellant as 30 years on 28.2.2008 when the board had examined the appellant that brings him around 14 years of age on the date of occurrence, i.e., 26.1.1991 and thus we have to hold that the appellant was a juvenile in conflict with law on 26.1.1991. 23. This brings us to consider as to what order we could pass after having upheld the conviction of the appellant. Section 20 of the Juvenile Justice (Care and Protection of Children)Act, 2000 is relevant to the present context. The provision reads as under:- “Special provision in respect of pending cases- Notwithstanding anything contained in this Act, all proceedings in respect of a juvenile pending in any Court in any area on the date on which this Act comes into force in that area, shall be continued in that Court as if this Act had not been passed and if the Court finds that the juvenile has committed an offence, it shall record such finding and instead of passing any sentence in respect of the juvenile, forward the juvenile to the Board which shall pass orders in respect of that 14 juvenile in accordance with the provisions of this Act as if it had been satisfied on inquiry under this Act that a juvenile has committed the offence. Provided that the Board may, for any adequate and special reason to be mentioned in the order, review the case and pass appropriate order in the interest of such juvenile.” 24. On perusal of the above provision, we find that if a juvenile has committed an offence and if the court finds him having done so then the court may record a finding of guilt in respect of the juvenile, but will refrain from passing a sentence upon the juvenile in the light of the above provision and, in turn, shall forward the juvenile to the Board which shall be passing orders in respect of that juvenile in accordance with the provisions of the act. It may be pointed out that the orders which could be passed by the Board may be covered by Section 15 and 16 of the Act. “Board” means as per definition of the term in Section 2(c) the Juvenile Justice Board constituted under Section 4”. 25. After having upheld the conviction of the appellant by holding the findings recorded by the learned trial Judge as correctly passed order, we direct the records of the lower court along with the copy of this judgement to be forwarded to the Juvenile Justice Board, Bhojpur at Ara for passing an appropriate order as the Board deems fit under the provisions of Section 15 and 16 of the Act. We further direct that the appellant, if he is confined in any other jail than that of Bhojpur at Ara, must be produced 15 before the Board at Ara for the above purposes. 26. We dismiss the appeal with the above directions. PATNA HIGH COURT Dated, the 4th of February, 2010 Brajesh Kumar/AFR (Dharnidhar Jha,J.) (Rakesh Kumar, J.)