IN THE HIGH COURT OF UTTARAKHAND AT NAINITAL Criminal Appeal No. 57 of 2003 Shannu @ Guddu @ Mehfooz Ali and another ……… Appellants. Versus State of Uttarakhand ……… Respondent Mr. B.S. Adhikari, Advocate for appellant No. 1. Mr. L.K. Tiwari, amicus curiae for appellant No. 2. Mr. B.S. Parihar, Assistant Government Advocate (Govt. of Uttarakhand) for the State / respondent. Mr. Sudhir Chaudhary, Advocate for the complainant. with Criminal Appeal No. 10 of 2003 Shaeem ……… Appellant. Versus State of Uttarakhand ……… Respondent Ms. Pushpa Joshi, Advocate for the appellant. Mr. B.S. Parihar, Assistant Government Advocate (Govt. of Uttarakhand) for the State / respondent. Mr. Sudhir Chaudhary, Advocate for the complainant. Date of Judgment: 29.12.2010 JUDGMENT Coram: Hon’ble Barin Ghosh, C.J. Hon’ble V.K. Bist, J. BARIN GHOSH, C.J. (ORAL) Criminal Appeal No. 10 of 2003 These two appeals are by Shannu @ Guddu @ Mehfooz Ali, Baboo and Shaeem, the three convicts for having murdered the victim Bhagwant Singh. On behalf of Shaeem an application has been filed stating that Shaeem was a juvenile at the time when the occurrence took place. In support of the said contention, Shaeem is relying on his Uttar Pradesh Madhyamik Shiksha Parishad certificate, certifying that he passed High School examination in 2003. In that, it has been stated that the date of 2 birth of Shaeem is 16th September, 1986. In view of the provisions contained in the Registration of Births and Deaths Act, 1969, the said certificate cannot be taken to be an authentic certificate pertaining to the date of birth of Shaeem. Furthermore, the said certificate came into existence about three years after the murder took place. Since the said certificate, for the reason already indicated above, is not a piece of evidence for the purpose of recognizing the date of birth of Shaeem, we were about to reject the application. However, the learned counsel appearing on behalf of Shaeem has drawn our attention to the judgment of the Hon’ble Supreme Court rendered in the case of Dharambir vs. State (NCT of Delhi) and another reported in 2010, (5), SCC 344. Alongwith that, the learned counsel has also drawn our attention to Section 20 of the Juvenile Justice (Care and Protection of Children) Act, 2000 as well as Section 7-A thereof, inserted therein w.e.f. 22nd August, 2006. In terms of the provisions contained therein, as noted by the Hon’ble Supreme Court in the aforementioned judgment, it is now mandatory for the Court to enquire whether the person is a juvenile, no sooner such a claim is put forward, whether such a claim has been put forward before the trial Court or not. 2. We, accordingly, direct the Registrar (Judicial) of this Court to determine the age of Shaeem independent of the said certificate dated 22nd June, 2003 of Uttar Pradesh Madhyamik Shiksha Parishad as on the date of commission i.e. 14th December, 2000. Shaeem is directed to report for that purpose to Registrar (Judicial) of this Court on 3rd January, 2011. Registrar (Judicial) is directed to take such steps as are required to be taken for the purpose as above and to report back to this Court as soon as his report is prepared. No sooner the report is prepared, let the appeal by Shaeem be listed for further consideration. Criminal Appeal No. 57 of 2003 We have heard learned counsel for the appellant Shannu and Amicus Curiae, Sri L.K. Tiwari on behalf of Baboo. In the instance case, the First Information Report was in writing under the signature of P.W. 1. 3 The same was, however, written by Darshan Singh. In the First Information Report, the name of Shannu was mentioned, but the name of Baboo was not mentioned. It was stated in the First Information Report that three persons fired upon the victim, who was the brother of P.W. 1. It was stated in the First Information Report that the incident took place also in the presence of P.W. 2. 2. At the trial, P.W. 1 and P.W. 2 deposed. Both of them stated that Shannu and Baboo fired upon the victim, to which they were eyewitnesses, and Shaeem, the third accused, stabbed the victim. These two witnesses were cross-examined, but they were not shaken. None of the accused persons could bring on record of the case anything which would suggest that in the backdrop of those things, the Court should not believe what those two witnesses had deposed before the Court. 3. Both these two prosecution witnesses had stated that about 15 minutes before the incident took place, they had tea. P.W. 1 had stated that in addition to tea, they had samosa and tikki. It was contended that the Doctor, who conducted postmortem and proved the postmortem report, had indicated that the stomach of the victim was empty and, if the victim had consumed any edible after noon, undigested food would remain in the stomach. It was contended that in view of said evidence, it is clear that the evidence given by P.W. 1 is not acceptable. We have considered the evidence of P.W. 1, where he had stated that he had taken tea, samosa and tikki, but since he had used the word “Hum” (in Hindi), it was sought to be insinuated that the victim too had taken tea, samosa and tikki, but no tress thereof was found in his stomach in course of postmortem and, accordingly, the evidence of P.W. 1 should not be accepted. In the cross-examination, not a single question was put to P.W. 1 that alongwith P.W. 1, victim too had consumed tea, samosa and tikki. That being the situation, there is nothing on the basis whereof the Court can come to a conclusion that the evidence given by P.W. 1 and P.W. 2, claiming to be eyewitnesses, should not be accepted. 4 4. In so far as Shannu is concerned, it was proved that he used a gun. The same was produced alongwith the empty shell of the bullet and also the ballistic report. In so far as Baboo is concerned, a gun was produced, but the empty shell of the bullet was not produced, nor the gun was sent for ballistic examination. It was contended that in such circumstances, the gun thus produced cannot be linked with Baboo. Even assuming what the learned Amicus Curiae submitted is right and should be accepted by us, still then Baboo cannot avoid the positive evidence given by the eyewitnesses. 5. We thus conclude the matter and, while dismissing the appeal, confirm the judgment and order under appeal, in so far as Shannu and Baboo are concerned. (V.K. Bist, J.) (Barin Ghosh, C.J.) 29.12.2010 29.12.2010 Amit