State of H.P. vs Ramesh Chand and Others

Bhawani Singh, J.—This appeal assails the judgment of Additional Sessions Judge, Shimla in Session Trial No. 6-S/7 of 81/7-S/7 of 82, whereby accused Ramesh Chand has been convicted u/s 324 of the Indian Penal Code and instead of sentencing him to imprisonment, the Trial Judge released him by applying the provisions of Probation of Offenders Act and Section 360 of the Code of Criminal Procedure, there by directing his release on his furnishing two sureties of Rs. 10,000/- for a period of one year to appear and receive sentence when called upon during this period and he was to maintain peace and be of good behaviour. All other accused in the case were acquitted, since the prosecution failed to prove the charges against them.

Briefly, the facts are that Ramesh Chand (accused) and Amar Singh (deceased) were class fellows. They were studying in 7th Class in Government High School, Margo. On 4-10-1978, they were in their class of Sanskrit subject. There were other students also present in the class on that day at that particular time. Prayer was over and the students had gone to their classes. Amongst these students, were also Joginder Singh (PW-2), Kumari Sumitra (PW-3) and Yashwant (PW-4). Shri Jagdish Parsad (PW-16) was the Sanskrit Teacher and at the time of occurrence, he was sitting outside the class-room and was marking the attendance of students. Ramesh Chand and Amar Singh were sitting in the class, facing each other. Before exchanging kick blows on each other, they had some verbal altercation. In the process they stood up and during this time, Ramesh Chand, accused gave a knife blow on the chest of Amar Singh. He cried. While these boys were exchanging kick blows, Joginder (PW-2) had gone out to inform the Sanskrit Teacher, and when this teacher came inside the class-room, he found Amar Singh crying ''Mar Gia, Mar Gia''. Blood was coming out of the mouth and the injury. The deceased called for his elder brother Haridayal Singh (PW-1) who was also studying in the same school in 8th class. On arrival, his brother found that the deceased was bleeding from mouth and chest and told him that he was dying. On enquiry, the deceased told his brother that Ramesh Chand, studying in his class, had given him a knife blow. The teachers and the Headmaster came there. The deceased was taken to the hospital where Ayurvedic Doctor, Vijay Kumar Sharma (PW-11) applied Choramin injection to the deceased, but he died. His dead body was brought to the school and was kept in the Drawing Room. Information was sent to his parents. Certain influential persons prevailed upon the school staff as well as the relatives of the deceased for the cremation of the body, saying that the boy died because of a fall. Accordingly, the dead body was cremated.

The Station House Officer, Police Station Chopal came to know of this incident and reached the school on 6-10-1978 and recorded the statement of Haridayal (PW-1) for the purpose of First Information Report. Investigation revealed that the blow was inflicted on the chest of the deceased by Ramesh Chand. He used knife for the purpose which was thrown out of the class-room through the window, where it was picked up by some other student from whom it was snatched by the accused, before he ran away along with it. Case was registered Under Sections 302/201/202/176/109 of the Indian Penal Code against the accused in this case. The knife was recovered at the instance of Ramesh Chand pursuant to his disclosure statement and after making other recoveries and recording statements of various other witnesses, the challan was filed against the accused in the Magistrate''s Court, who committed the accused for trial before the Court of Session.

The prosecution examined a number of witnesses to support its allegations against the accused and on the other hand, the accused in their examination u/s 313 of the Code of Criminal Procedure, denied the incriminating circumstances against them. One witness Ratti Ram (DW-1) has also been examined in defence. The Headmaster of the School, who is one of the accused in this case, has explained that he could not personally report this matter to the Police or the Magistrate because of the long distance from the place of occurrence to Chopal, and that no transport was available. However, he had reported the matter to the Police through the Patwari of the Illaqua. The trial ended in the aforesaid conviction of Ramesh Chand and acquittal of all other accused in the case.

Before examining the case of Ramesh Chand accused, we take up the cases of other accused in this case. Prem Nath was the Headmaster of the School at the relevant time. He has been charged u/s 202/176 of the Indian Penal Code. Allegation against him is that it was his duty to have reported the matter to the concerned authorities and his failure attracted these penal provisions of Indian Penal Code. The explanation of the accused is that he could not give the information personally by visiting Chopal due to the long distance and non-availability of transport. However, he conveyed it through the Patwari. The version of Patwari (PW-5) is that he was also present at the place of occurrence and recorded this incident in his Rojnamcha (Ext. PC) He sent the copy of the same to the Tehsildar. He admitted that the accused had asked him to report on his behalf also and he told the accused that he had already made the report in the Rojnamcha of 4th October, 1978 and 5th October, 1978. This report not only mentioned the incident, but also the fact that he reported the matter personally by appearing before the Tehsildar, Chopal and also produced the report of 4-10-1978. It was also reported that the dead body had been cremated. Jinu Ram (PW-8) is the uncle of the deceased. He states that he had adopted the deceased and on coming to know of the incident, he visited the spot. He also states that he did not report the matter to the Police, since he also came to know that the Patwari had done so. It is true that the accused should have reported the matter to the authorities concerned. However, his failure is not culpable for the reason that he had already reported the matter to the Patwari. There is, of course, genuine problem of transport from the place of incident to Chopal, which is at a distance of 26 kilometers. Statement of Patwari (PW-5) supports the version of the accused that he had reported the matter to him. Actually, the matter had been reported by the Patwari to the Tehsildar at Chopal, as already discussed herein above. Shri Jinu Ram (PW-8) had come to know of the incident. He is the nearest relation of the deceased, who has also stated that he had adopted the deceased. This witness also did not report the matter to the Police. In these circumstances, failure of the accused cannot be termed to be intentional, so culpable. The charge against him, therefore, remains unsubstantiated.

Looking to other accused, who have been involved u/s 201/202/176 and 109 of the Indian Penal Code, are also not liable for the commission of these offences. These persons belong to the locality and came to the scene of the crime when they came to know of it. Among them were Jinu Ram (PW-8) and his brother Rattan Chand. We have already exonerated the Headmaster of the School; there is no reason to hold the other accused responsible for the commission of the offences against them, when the nearest relations of the deceased did not care to report the matter. Further, no offence of abetment of causing disappearance of the evidence with a view to screen the offenders from legal punishment arises in the present case against the accused. Even if it is assumed that they advised the taking away of the dead body for cremation on the basis that the deceased was not killed but had a fall that could not be considered to be by way of abetting the commission of the crime for the reason that it was a case where everyone present had come to know that there was a fight between the students and it was Ramesh Chand who gave knife blow to the deceased. It was well known that the deceased died of the injury at the instance of Ramesh Chand. He was bleeding. He was taken to the hospital, brought back and his clothes were be smeared with blood, so in such a situation, this allegation of the prosecution that the accused stated that the deceased died due to fall, cannot be accepted. It is not possible that the nearest relations of the deceased had not come to know of all this and they also participated in the cremation of the dead body. So, in view of this kind of evidence, it cannot be held that the accused instigated the relatives of the deceased to cremate the dead body. It appears that it was taken to be an unfortunate incident which was the result of a light between the two fellow students in the class. It was taken to be a misfortune and everyone including the relations, genuinely thought of cremating the deceased and the same was done before the Police came to know of this incident.

The result of the aforesaid discussion is that there is no merit in the prosecution case against these accused. The findings of the trial Judge relating to them are absolutely in accordance with evidence and the same are hereby confirmed.

Turning now to the principal accused Ramesh Chand, S/Shri Rajiv Sharma, Rakesh Kanwar and S.K. Dogra, Advocates, submitted that the trial of the accused is vitiated for the reason that at the time of the commission of the offence, he was a child and could not have been tried by the Court under the provisions of Code of Criminal Procedure along with other accused in this case. Although, objection to the jurisdiction of the Sessions Court, which tried the accused for the offence of murder, was not taken during the trial, however, question being legal and important, was permitted to be raised and calls for proper examination by this Court.

In the State of Himachal Pradesh, the Children Act, 1960 was applicable in the old area, whereas the East Punjab Children Act, 1949 was in force in the territory transferred to Himachal Pradesh u/s 5 of the Punjab Re-organization Act, 1966. Now, both these Acts are inapplicable to this State, since Himachal Pradesh Children Act, 1979 is applicable to the whole State. However, this offence was committed at the time when the Children Act, 1960 was applicable in that part of the State where this offence was committed.

Section 2(e) defines "child" to mean a boy who has not attained the age of sixteen years or a girl who has not attained the age of eighteen years. The relevant day is the day of the commission of the offence. Section 2(j) defines "delinquent child" to mean a child who has been found to have committed an offence. Section 5 deals with the constitution of Children''s Courts, whereas Section 7 thereof deals with the powers of these Courts. Sections 9 and 10 deal with the constitution and maintenance of children''s homes and the establishment of special schools for them. There is provision for establishment and maintenance of observation homes u/s 11 for these children. Leaving aside other provisions, Section 20 deals with the holding of inquiry against delinquent children by the Children''s Court and the orders that may be passed by the Children''s Court are given in Section 21, and those which may not be passed, find mention in Section 22, Section 24 prohibits trial of a child with a non-child, and Section 26 is a special provision in respect of pending cases. This provision provides that in case proceedings in respect of a child are pending in any Court in any area on the date on which this Act comes into force in that area, they shall be continued in that court as if this Act had not been passed and if the Court finds that the child has committed an offence, it shall record such findings and, instead of passing any sentence in respect of the child, forward the child to the children''s Court which shall pass orders in respect of that child in accordance with the provisions of this Act as if it had been satisfied on inquiry under this Act that the child has committed the offence.

Ramesh Chand accused was sixteen years of age on 20-11-1982, when he was examined u/s 313 of the Code of Criminal Procedure. The offence was committed on 4-10-1978. He was studying in 7th class. This means, his age on the day of the commission of the offence was definitely less than fourteen years and he was thus a child within the meaning of Section 2(e) of the Children Act, 1960, and could not be tried by the Sessions Court. Accordingly, this objection of the Id. counsel for the accused prevails and it is held that the trial of Ramesh Chand accused stands vitiated.

Now, the question arises as to what should be done as a consequence of this decision. The accused had committed the offence on 4-10-1978. He was held guilty for an offence u/s 324 of the Indian Penal Code and not u/s 302 of the Indian Penal Code. Instead of sentencing him, he was released on probation, as already mentioned in the preceding part of this judgment. That was done looking to the facts that he was quite young and was a school boy. There was no past criminal history. It has not been brought to our notice by the prosecution that during all these eleven years the accused committed any other offence nor there is any complaint that he did not comply with the requirement of keeping peace and was not of good behavior during the period of two years as ordered by the trial Judge. In these circumstances, it is just and proper that even if the conviction is set-aside for reasons mentioned above, the fresh trial of the accused at this stage, when he has crossed the age of twenty-five years, is neither practicable nor desirable.

Accordingly, this appeal is disposed of in the aforesaid terms.