YINOD KUMAR

STATE OF U.P.

APRIL 21, 1987

[A.P. SEN. AND B.C. RAY, JJ.)

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U.P. Children Act, 1952; ss, 2(4) & 29-College student took part .,-· in triple murder~Documents filed in proof of age held of doubtful authenticity-Appellant not child within the meaning of the provision.

Constitution of India, Article 136: Powers of the Court to take ' notice of an impropriety.

- Code of Criminal Procedure, 1973: s. 374--Appeal-Wild and unfounded allegations against Judges of High Court-Tendency- Strongly deprecated.

 The appellant-a student of intermediate class, was alleged to have led the attack on the rival faction alongwith his accomplices armed with deadly weapons like gun, pistol, sword, kanta, lathi etc. resulting in triple murder. He was 'also alleged to have opened fire with bis gun at the deceased. • ·

The trial court disbelieved his plea of alibi, that ou the date of occurrence he was actually attending bis classes in college, in support of which he tendered in evidence the attendance register and also exa mined D\V 1, the lecturer in college, and he was convicted under s. 302 read withs. 149 of the Indian Penal Code, 1860. t ·,,_ The High ~urt in appeal affirmed the conviction. Agreeing with ' the triarcourt it reached the conclusion that the entries in the college attendance register were forged and passed strictures against the witness. ·

In the appeal before this Court by special leave the appellant came forward with the belated plea that he was a child below the age of 16 years within the meaning of s. 2(4) of the.U.P. Children Act, 1952 and j there!ore, the trial was vitiated by reason of s. 29 of the Act. It was contended that in spite of repeated requests or his counsel he was not heard by the High Court Judges ou the point. While making this frivol ons assertion the accused also made wild allegations in an attempt to

A destroy the credibility of the Judges and creat~ doubt about the correct-

~- ness of the judgment appealed from. To substantiate tbe allegation he and his legal advisors brought into existence certain correspondence. In support of his age he filed affidavits of his father and the advocate. In addition, he also placed on record copies of extract of the kutumo register of the Gaon Sabha, certificate of High School examination, B entry from the electoral roll, and endorsement in ink below his statement recorded unders s. 313 of the Code of Criminal Procedure, 1973. ).__

Dismissing the appeal, the Court

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' HELD: 1. 1 The appellant wa• not a child within the meaning of s. 2(4) c of the U.P. Children Act, 1952 at the time of occurrence and, therefore, was not entitled to the benefit of section 29 of the Act. [1062F; 1055G-H] , l

1.2 The affidavits and the copies of documents placed on record, after the grant of the special Ieave--<oxtract of the kutumo register of the Gaon Sabha, certificate of High School Examination and entry from D the electoral roll, in support of appellant's age are all of doubtful authenticity 'ilnd it would be unsafe to rely upon them. Such documents can always be brought into existence. So is the endorsement in ink below the statement of the appellant recorded by the trial court under s. 313 of the Code of Criminal Procedure 1973, to the effect that "the age of 17 years t appears to be correct". Even assuming that.the endorsement was made E by the trial court, that was only an estimate of age and does not neces- -- sadly show that the apppellant was a child within the meaning of s. 2(4) of the Act at the time of occurrence. I J062F; 1063C]

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1.3 The attempt made by the appellant and his legal advisors earlier to substantiate the false plea of alibi by production of forged .It' F attendance register, and the tendering of evidence of DW 1, against whom the High Court has passed strictures for suborning himself in an attempt to thwart the course of justice, makes it evident that the appeli.mt and his legal advisors would go to any extent in creating evidence to snpportthe false plea now taken. [1063CD]

G The facts brought out in the prosecution case clearly show that the )---- incident which led to the triple murder was calculated, preplanned and rutltlessly executed, and that the appellant not only led the assault hut also played a prominent role in it. It is incredible that he was a child below _the age of 16 years at thattime. [ 1056H; 1057 A]

2. There is nothing on record to substantiate the allegation that

the appellant was not heard by the High Court on the question of his age, If there was any troth in that assertion it was expected that the learned Judges would have made a mention of the fact that a contention was advanced on his behalf that he was a child within the meaning of s. 2(4) of the Act, for whatever it was worth. [1060DE]

3.1 The appellant and the other accused have gone further and made wholly wild and unfounded allegations against the Judges of the High Court casting serions aspersions on them. They have brought into existence certain correspondence in an attempt to create prejudice against them. The propriety of placing copies of the correspondence on record cannot be seen nnless it was with a view to create doubts and suspicion about the integrity of the Judges. It shows that the appellant and his legal advisors can go to any extent to secure a reversal of the judgment of the High Court. [1060FG]

3.2 The practice of making baseless imputations on the part of unsuccessful litigants against Judges is most unhealthy and this Court takes set ions notice of this evil. The members of the bar equally share this responsibility and should ensure that such uncalled for aspersions are not cast on the Judges. The counsel who drafted the special leave petition should have shown greater circumspection. [J063E; l062U]

.if CRIMINAL APPELLATE JURISDICTION: Criminal Appeal No. 287 of 1986.

From the Judgment and order dated 26.4.1985 of the Allahabad High Court in Cr!. Appeal No. 1938 of 1977.

D.P. Singh, N.P. Midha and Mrs. Rani Chhabra for the Appellant.

Prithvi Raj and D. Bhandari for the Respondent.

The Judgment of the Court was delivered by

SEN, J. This appeal by special leave directed against the judgment of the Allahabad High Court dated April 26, 1985 upholding the judgment and sentence passed hy the learned Additional Sessions Judge, Kanpur dated July 11, 1977 raises the question whether the appellant was a child as defined ins. 2(4) of the U .P. Children Act, 1952 and therefore was entitled to Jhe benefit of s. 29 of the Act. The point was not taken in the High Court nor was there any such plea

A raised during the trial. This was a case of triple murder. The appellant along with his ten companions was convicted by the learned Additional

~ Sessions Judge under s. 302 read withs. 149 of the Indian Penal Code,

1860 for having committed the murders of the deceased Basdeo, Anant Ram and Mahabir in furtherance of the common object of the

B unlawful assembly and they were each sentenced to undergo rigorous imprisonment for life. The Court has granted special leave to the appellant Vinod Kumar alone and dismissed the special leave petitions filed by the other accused. )...

In this appeal, the appellant sought special leave mainly on two

~ . .. grounds, namely: (1) The High Court was not justified in dismissing c the appeals before it without hearing learned counsel appearing for the accused on the ground that the Court was satisfied that the appeals ought to be allowed. And (2) The trial of the appellant Vinod Kumar

).. and the sentence of imprisonment for life awarded upon his conviction under s. 302 were vitiated in view of the decisions of this Court in

D Jayendra & Anr. v. State of U.P., [1981] 4 SCC 149; Umesh (:handra v.

State of Rajasthan, [1982] 3 SCR 583 and Gopi Nath Ghosh v. State of West Bengal, [1984] I SCR 803 as the appellant at the time of the incident was not even 14 years of age, his date of birth being April 18, 1959, and was a 'child' as defined ins. 2(4) of the Act and he oµghl to have been tried by the special court as required under s. 29 and his trial

'f.- by the Court of Sessions was bad in law.

E We have heard Shri Dharam Pal Singh, learned counsel for the - appellant at quite some length. It was stated that the only question raised at the stage of grant of special leave, which again was the solitary

~ point urged by him before us, was that the appellant was a child within

F the meaning of s. 2(4) of the Act at the time of the occurrence and therefore entitled to the benefit c;>f s. 29. The learned counsel made a statement at the bar that the other point was not pressed at the hearing k . of the special leave petitions, namely, that the High Court did not give a hearing to the appellant and the other accused.

G Normally, it would seem unnecessary to state the facts of the case in detail as they may not be germane to the issue now sought to be raised, namely, that the High Court was not justified in dismissing the

r---·~ appeal preferred by the accused without giving them a hearing. But in the facts and circumstances of the present case, we think it necessary to do so. The facts brought out in the prosecution case clearly show

H that the appellant not only led the assault but also played a prominent role which resulted in the gruesome triple murder and it is incredible

that he was a child at the time of the incident. The incident which led A to the triple murder appears to be calculated, preplanned and ruthlessly executed.

Brief!y lated, the facts disclosed by the evidence of the prosecu- \ion ar11 that there were two rival factions in village Pania Mau, one led 11y the deceased Basdeo to which the other dead persons Anant Ram B

~ and Mahabir belonged, and the other of which the appellant Vinod Kumar and his ten companions were members, and the relations between them were extremely strained. It appears from the prosecution

- ft evidence that this ghastly incident took place on the morning of August 20, 1973 on the banks of a tank lying on the western outskirts of the village abadi which is used by the village people for purposes of c bathing and washing their clothes. At about 11.30 a.m. the three

~ deceased Basdeo, Anant Ram and Mahabir had gone to the tank for taking bath and washing their clothes. One of the eye-witnesses K\lrnari Shashi Kala, PW 3, sister of the deceased Basdeo had also gone there for similar purposes. She was at the southern burj of the tank, deceased Basdeo was (Jn the northern burj, deceased Mahabir D and Anant Ram were on the steps of the ghat on the eastern bank. The appellant Vin{)d Kumar along with his companions suddenly appeared ai the g!!at armed with deadly weapons like gun, pistol, sword, kanta,

~ lathi c:to, and they opened an assault on the three dead persons. The accused almost simultaneously opened fire with his gun at the

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deceased Basdeo and the appellant Vinod Kumar with his pistol at the E deceased Mahabir. Basdeo on receiving gun shot injuries jumped into the tank to swim across and take to safety .. The deceased Mahabir was ir also injured by gun-fire and tried to escape but fell down on receiving another gun shot fired by the accused Hanuman. When he fell down, the accused Shiv Prasad and Ranjit Singh repeatedly hit him with their ; J sword anll kanta resulting in his instantaneous death. The deceased F Anant Ram was also assaulted by the accused Roop Ram and Gopal with their sword and kanta and he died on the spot as a result of the injuries received by him. The appellant Vinod Kumar and the accused Hanuman then rushed to the western bank of the tank and opened fire at the fleeing Basdeo and on being hit he fell down in the fie'd of Deo Karan. By that time all the accused reached the spot and there he was G ~---{ again assaulted by the appellant and his companions and his head was chopped off the trunk. Thereafter, the sppellant and his companions made good their escape and the accused Roop Ram carried the decapitated head of the deceased Basdeo.

The appellant abjured his guilt and complained that he had been H

A falsely implicated due to previous animosity. His only plea in defence at the trial as well as in the High Court was one of alibi. It was alleged ~· that he was a student of Intermediate class in C.A.V. Inter College, Allahabad and on the date of the occurrence i.e. on August 20, 1973 he was actually attending his classes in the college .. He tedered in evidence the college attendance register and also examined Virendra B Kumar Mehta, DW l, a Lecturer in Physics in the college in support of his plea of alibi. ;....

The learned Additional Sessions Judge and the High Court have during the course of their carefully written judgments marshalled the ,~ - entire evidence and come to the conclusion that the guilt of the appelc !ant and the other accused was proved by the prosecution beyond all reasonable doubt. The High Court on a consideration of the evidence has come to the conclusion that there was no reason to disbelieve the J. unimpeachable testimony of PW 3 Kumari Shashi Kala, sister of the deceased Basdeo as well as the testimony of the three other eyewitnesses, PW I Ram Shanker. PW 2 Ram Swamp, brother of the 0 deceased Mahabir and PW 6 Prayag Narain, who were undoubtedly present at the place of the incident, and have given a graphic descriplion of the entire incident. It observed that though these witnesses were subjected to close cross-examination, the defence had failed to impeach their credibility as truthful witnesses. The evidence of these i witnesses clearly brings out that it was the appellant who Jed the as- E sault which resulted in the triple murder of Basdeo, Anant Ram and ..,.

Mahabir.

As to the plea of alibi raised by the appellant, both the learned ' Additional Sessions Judge and the High Court have recorded a finding

that he has failed to substantiate that plea. The crude attempt to F establish the plea of alibi by production of the college attendance :< register and the examination of Virendra Kumar Mehta, OW 1 has failed. The High Court agr, eeing with the learned Additional Sessions Judge has come to the conclusion that the entries in the college attendance register were forged and has passed strictures against this witness that he being a person in a responsible position, should have appeared G as a witness for the defence and had not cared to uphold the dignity of

)---·~ his position, and by giving suborned evidence has tried to thwart the course of justice not only by his evidence but also by interpolating the college attendance register.

From the narration of the facts it is incredible that the appellant H was only a child within the meaning of s. 2(4) of the Act i.e. below the

age of 16 years at the time of the occurrence, which is nothing but a A -i complete afterthought. Undeterred by the fact that the appellant had failed to establish the false plea of alibi by the production of the forged college attendance register and taking cue from the various decisions of this Court as reported in Satto & Ors. v. StateofV.P., [1979] 3 SCR 768; Jayendra & Anr. v. State of U.P., Umesh Chandra v. State of B Rajasthan and Gopi Nath Ghosh v. State of West Bengal (supra) dis-

-..\ playing the Court's deep concern and solicitude about the treatment of juvenile offenders, the appellant is emboldened to come forward with this belated plea that he was a child within the meaning of s. 2( 4) of the

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Act and therefore the trial was vitiated by reason of s. 29. However, before we deal with the question on merits we would like to advert to unseemly features in this case. c

--\· The case presents a feature which is rather disturbing. In the first place, there are false averments made in the special leave petition in order to present a distorted picture of the hearing of the appeals in the High Court. Secondly, there are wild and unfounded allegations made D against the learned Judges in an attempt to destroy their credibility and create doubt about the correctness of the judgment appealed. from. As to the first aspect, the legal advisors of the appellant and the other accused have gone to the extent of making out an entirely false

case, namely, .that the High Court did not give a hearing to them.

Merely because the learned counsel disdained from raising the point at the stage of grant of special leave, does not imply that we should not E ~

take notice of the facts alleged. We shall indeed be failing in our duty if we do not comment upon the conduct of the appellant and the other ' accused and their legal advisors in trying to create prejudice against

'JI the High Court. It is averred in paragraph 13 of the special leave' petition that the appeals were taken up for hearing on April, 1, 1985 at ;.; 3.15 p.m. and that day only the names of the accused, weapons, sec- F tions and sentences, date and time of the occurrence etc. were given out when the Court rose for the day at 3.45 p.m. It is then averred in para 14 that on the next day i.e. on the 2nd, the appeals could not be taken up. They were taken up on the 3rd at 2.10 p.m. when the case was called out when Shri Chandra Shekha~ Saran and Shri P.C.

Chaturvedi, the two senior counsel along with Sarvashri Dharam Pal G ·--!

Singh, G.S. Chaturvedi and A.K. Sachan appeared. It is alleged that when the case was called out and Shri Chandra Shekhar Saran wanted to argue the appeals, the learned Judges said that they had seen the case and they did not want to hear the appellants but wanted to hear the State counsel. At this point, it is said that Shri P .C. Chaturvedi

H pointed out the age of the appellant Vinod Kumar and thereupon one

of the Judges (Hon'ble Mr. Justice X who delivered the judgment) observed that since they wanted to allow the appeals, therefore, they did not want to hear the appellants and if need be, they would call upon them later. It is then alleged that the Court called upon the State as to how it supported the judgment as two of the four eye-witnesses had been disbelieved by the learned Additional Sessions Judge and the remaining two witnesses were partisan witnesses, one of whom being PW 3 Kumari Shashi Kala, who was a young girl of 15 years and would not go to the tank alone at that time. It is further alleged, \at after the prosecution had placed the evidence of PW 2 Ram Swarp, the Court was not satisfied and reserved the judgment. At this ~\ge, it i~ said, Shri P .C. Chaturvedi again tried to point qut te ?g~ ef \he appellant but Mr. Justice X observed that when th~ veraei!y of the two eyewitnesses was doubtful there remained no need to proceed further.

The Court rose at 3.45 p.m. The allegations in paras 14 to 17 are that the Judges gave an impression at the conclusion of the hearing on April 3, 1985 that the appeals would result in an acquittal while they pronounced the judgment on the 28th dismissing the appeals and it is then averred' in para 17 that this decision came as a shock to the counsel appearing for the accused. There is nothing on record to sub- . stantiate these allegations apart from the letter written by Shri Dharam Pal Singh to the counsel in this Court to file the special leave petition to which we shall presently refer. Jn view of the conduct of the appellant and the other accused and their legal advisors we are not prepared to act on the assertion in the letter written by Shri Dharam Pal Singh. If there was any truth in this assertion, it was expected that the learned Judges would have made a mention of t!ie fat that a contention was advanced on behalf of the appellant that Ii~ was a child within the meaning of s. 2( 4) of the Act for whatever it was worth.

F We feel deeply concerned that the appellant and the other accused do not rest themselves by making this false assertion that they were not heard by the High Court but they have gone further and made wholly wild and unfounded allegations against the learned Judges casting serious aspersions on them. They have brought into existence certain correspondence in an attempt to create prejudice G against the learned Judges. We fail to see the propriety of placing copies of these two letters unless it was with a view to create doubts and suspicion about the integrity of the learned Judges. It shows that the appellant and his legal advisors can go to any extent to secure a reversal of the judgment of the High Court upholding the conviction of the appellant for having committed offences of murder punishable H under s. 302 read withs. 149 of the Indian Penal Code. First is a letter

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dated April 23, 1985 i.e. just three days before the delivery of the judgment, said to have been written by Shri K.L. Grover to the accused Ram Gopal Sachan. We understand that Shri Grover is comparatively a senior counsel practising in the High Court at Allahabad.

The letter of Shri Grover appears to be written in response to a letter written by the accused dated April 20, 1985 seeking his assistance. Shri Grover naturally expressed his resentment and displeasure that the 11ccuse<j should have written a letter of this nature to him asking that he should try to influence the learned Judges. It is in these terms:

"I was surprised and sorry after reading it. Neither I am a Counsel in Criminal Nos. 1937 and 1938 of 1977 Hanuman and others and Vinod and others, nor I know any of them and I have no connection with these cases. You have written about Shri D.P. Singh, Advocate. He is a good counsel but your assertions are baseless. I do not take part in any unscrupulous thing. This is correct that Hon'ble X is my friend but he is a Judge and I am an advocate. Decisions are not sold in the High Court. Hon'ble Xis like all other Judges of the High Court very honest Judge. Either you have written false thing or you have been cheated by some body. Kindly do not correspond with me in this connection."

'file othl'r is a letter dated May 24, 1985 addressed by Shri Dharam Pal Singh to the counsel in this Court instructing him to file the special leave petition, saying that as a counsel his "conscience was shocked", narrating that at the hearing the learned Judges gave the impression that thfs was a case which deserved acquittal and they would like to hear the prosecution counsel and thereafter, if necessary, they would hear the accused. In the l_etter he asserts that on this the senior counsel Shri Chandra Shekhar Saran did not address the Court, but Shri P.C. Chaturvedi told the Court that the appellant was a child upon which one of the learned Judges observed that since they were allowing the appeal, it was not necessary to go into the question. He then goes on to say that he and the other counsel were shocked by the judgment delivered by the learned Judges dismissing the appeals. He also adverts to Shri Grover's letter and mentions that he had taken the accused Ram Gopal Sachan to Shri Grover's place and enquired about the letter since the accused denied that he had written any such letter.

According to his version Shri Grover declined to give them the letter as he did not want to get involved in any controversy and he then adds:

"As counsel, we owe a duty to our client and all of us appearing on behalf of the accused feel that we have failed therein and our conscience is in distress."

He then concludes by saying:

"We do not know whether all these facts should be placed before the Hon'ble Supreme Court and this decision we leave in your hands. But we do request you to Kindly see that the hearing which we could not get for these accused (having a case for acquittal) do get an opportunity of placing their case before the Court."

A perusal of these letters would tend to show that there was an attempt to blackmail the learned Judges. We cannot but deprecate the conduct of the appellant and the other accused in making such wild allegations about the propriety and conduct of the learned Judges. We have no doubt in our mind that the allegations are totally false and untrue. It is D pertinent to observe that Shri Dharam Pal Singh has chosen not to file any affidavit in support of the assertions made by him in his letter. The learned counsel who drafted the special leave petitions should have shown greater circumspection before casting such serious aspersions on the High Court. We are not prepared to believe that it was mentioned before the learned Judges at the hearing of the appeals that E the appellant was a child within the meaning of s. 2(4) of the Act when this fact is not borne out by the judgment and there is nothing on record to substantiate the allegation.

In the facts and circumstances of this particular case, we are not prepared to countenance the argument that the appellant was a child F within the meaning of s. 2(4) of the Act. After the grant of special leave, the appellant apart from his own affidavit, filed two affidavits of his father Sri Narain Sachan and an affidavit by Shri Jitendra Prasad Singh, Advocate, brother of Dharam Pal Singh. He has also placed on record copies of certain documents, namely (I) extracts of the kutumo register in Form 'A' of Pania Mau Gaon Sabha issued by the Village G Panchayat Officer, Nyaya Panchayat, Dev Rahal. (2) Certificate of the High School Examination, 1973 issued by the Secretary of Madhyamik Shiksha Parishad, Uttar Pradesh. (3) Entry from the electoral roll relating to U.P. State Legislative Assembly Constituency No. 275, Allahabad, Mahalia Buxi Khurd. (4) Statement of the appellant recorded by the learned Additional Sessions Judge under s. 313 of H the Code of Criminal Procedure, 1973. We have gone through these

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affidavits and other documents and we are not prepared to act on them. At the hearing we asked the learned counsel to produce the original documents. We are satisfied that the documents are of doubtful authenticity and it would be unsafe to rely upon such documents.

Such documents can always be brought into existence. We would refer

to the statement of the appellant recorded by the learned Additional B Sessions Judge on June 4, 1975 wherein the appellant stated his age to be 17 years. Beneath the statement, there is an endorsement in ink: "The age of 17 years appears to be correct". We are left to guess who made this endorsement. Even assuming that the endorsement was made by the learned Additional Sessions Judge, that was only an estimate of age and does not necessarily show that the appellant was a child within the meaning of s. 2(4) of the Act at the time ofoccurrence.

In view of the earlier attempt made by the appellant and his legal advisors to substantiate the false plea of alibi by production of forged attendance register and the tendering of evidence of Virendra Kumar Mehta, DW 1 against whom the High Court has passed strictures for suborning himself in an attempt to thwart the course of justice, it is quite evident that the appellant and his legal advisors would go to any extent in creating evidence to support the false plea now taken.

In conclusion, we cannot but once again deprecate the growing tendency on the part of the unsuccessful litigants to impute unworthy motives to Judges and this has become not uncommon these days. We frown upon the practice of making such baseless imputations against Judges and time has come for this Court to take serious notice of this unhealthy trend before it becomes a growing menace and an unmitigated evil. We feel that the members of the bar equally share this responsibility and should ensure that uncalled for aspersions are not cast on the Judges. Such a course of action on their part would enhance the prestige of the Court and the legal profession. For these reasons, the appeal must fail and is dismissed.

P.S.S Appeal dismissed.