IN THE HIGH COURT OF UTTARAKHAND AT NAINITAL Criminal Appeal No.1930 of 2001 (Old No.1025 of 1998) Nandan Singh S/o Govind Singh P.S. Patwari Kshetra Puniabagarh, Tehsil Ranikhet, District Almora …..Appellant Versus State of Uttar Pradesh (Now State of Uttarakhand) ….Respondent Shri D.K. Sharma, Advocate present for the appellant. Shri Amit Bhatt, A.G.A. present for the State. Dated: 16th March, 2011 Coram: Hon’ble Prafulla C. Pant, J. Hon’ble V.K. Bist, J. Prafulla C. Pant, J. (Oral) This appeal preferred under Section 374 Code of Criminal Procedure, 1973 (for short Cr.P.C) is directed against the judgment and order dated 19.05.1998 passed by the Sessions Judge, Almora whereby appellant Nandan Singh has been convicted under Section 302 read with Section 34 Indian Penal Code (for short I.P.C.) and sentenced to imprisonment for life. 2. Heard learned counsel for the parties and perused the lower court record. 3. Prosecution story in brief is that one Madan Singh was the common ancestor of the accused/appellant Nandan Singh, and his uncle Hukam Singh (deceased). Hukam Singh & Govind Singh (father of the appellant) 2 used to live in half portion of the house of Madan Singh in village Phulai. Nandan Singh (accused/appellant) also used to live there, though he had constructed a house in village Rampur, which was at a distance of 7 Kms. from village Phulai. On 05.05.1991 Motuli Devi (P.W.1) lodged First Information Report (Ext.A-1) with Patwari Puniabagarh stating that on 04.05.1991 at about 10:00 p.m. accused/appellant Nandan Singh alongwith his father Govind Singh quarreled with Hukam Singh, and with common intention committed his murder. It is also stated in the First Information Report that accused/appellant Nandan Singh who was armed with a knife gave blows on the person of Hukam Singh, while Govind Singh caught hold of the deceased. (In Uttarakhand hills, certain Revenue Officials have been given Police powers under U.P. Government Notification no.494/VIII-418-16 dated 7th March, 1916). On the basis of the First Information Report Crime no.2 of 1991 was registered by the concerned Patwari, who prepared the check report (Ext.A-8) and investigated the crime. The post mortem examination was conducted by Dr. P.K. Shukla (P.W.4). On completion of investigation, Investigating Officer submitted charge sheet against the accused/appellant Nandan Singh and his father Govind Singh for the trial in respect of offence punishable under Section 302 and 307 I.P.C. 4. The Munsif/Judicial Magistrate, Ranikhet on receipt of the charge sheet after giving necessary copies to the accused, committed the case to the court of Sessions for trial. It appears that the accused Govind Singh died and the trial proceeded only as against accused/appellant Nandan Singh. Learned Sessions Judge, Almora on 17.04.1992 after hearing the parties, framed charge of offences punishable under Section 302 read with Section 34 and Section 307 read with Section 34 I.P.C. against accused/appellant Nandan Singh who pleaded not guilty and claimed to be tried. The charge of murder related to death of Hukam Singh and charge relating to attempt to commit murder related to Trilok Singh (son of Hukam Singh). 5. The prosecution got examined P.W.1 Motuli Devi (informant) eyewitness/widow of the deceased, P.W.2 Trilok Singh injured eyewitness, P.W.3 Ms. Hema eyewitness/niece of the deceased, P.W.4 Dr. P.K. Shukla who conducted post mortem examination, P.W.5 Dr. Y.S. Thapliyal who recorded injuries on person of Trilok Singh and P.W.6 Balwant Singh (Patwari/Investigating Officer). The oral and documentary evidence was put to the accused under Section 313 Cr.P.C. In reply to which he alleged it to be false. However, no evidence in defence was adduced. After hearing the parties, the trial court found accused Nandan Singh guilty of charge offence punishable under Section 302 read with Section 34 I.P.C. only. He was acquitted from the charge of offence punishable under Section 307/34 I.P.C. After hearing on sentence, the trial court sentenced the convict to imprisonment for life under Section 302/34 I.P.C. Aggrieved by the said judgment and order dated 19.05.1998 passed by 4 Sessions Judge, Almora in Sessions Trial no.7 of 1992, this appeal was filed before the Allahabad High Court on 5th June, 1998. The appeal is received by this Court under Section 35 of U.P. Reorganization Act, 2000 (Central Act No.29/2000) for its disposal. 6. In this appeal, learned counsel for the appellant did not press any point on the conviction of the accused/appellant Nandan Singh. However, he pressed the plea that accused/appellant Nandan Singh was minor on 04.05.1991, the date of the incident. It is pleaded on behalf of the appellant that date of birth of Nandan Singh, is 05.11.1976, as such he was less than 16 years on the date of the incident. This Court vide its order dated 14th September, 2010 directed the Juvenile Justice Board, Almora to verify the date of birth and age of the accused/appellant. 7. A report has been received from Juvenile Justice Board, Almora that the date of birth of accused/ appellant Nandan Singh is 05.11.1976, as such he was aged less than 16 years on 04.05.1991 (the date of incident). The report of the Juvenile Justice Board is based not only on the family register but also the other evidence adduced before it. The entry in the family court register was found to have been made much before the date of incident. Juvenile Justice Board has finally concluded that in any case the age of the accused/ appellant was less than 18 years. 8. In view of the principle of law laid down in Dharambir Vs. State (NCT Delhi) (2010)5 S.C.C., 344 and Hari Ram Vs. State of Rajasthan (2009)13 S.C.C., 211, having considered submissions of the learned counsel for the parties and after going through the report of Juvenile Justice Board, we think it just and proper to maintain the conviction recorded by the trial court but set aside the sentence awarded against the appellant by the trial court. 9. Accordingly, the appeal is partly allowed. Conviction of the accused/appellant Nandan Singh recorded by the trial court relating to murder of Hukam Singh is upheld and to that extent the appeal is dismissed. But the sentence awarded by the trial court against the accused/appellant (who was Juvenile) is set aside for the reasons discussed above. The appeal to that extent only stands allowed. The appellant is on bail. He need not surrender. Lower court record be sent back. (V.K. Bist, J.) (Prafulla C. Pant, J.) 16.03.2011 Arpan