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Judgment
Indu Prabha Singh, J.—This appal is directed against the judgment and order dated 13.12.1988 passed by Shri R.D. Roy, 7th Addl. Sessions Judge, Patna in S.T. No. 760/86''by which all the four Appellants were convicted under Sections 307/34 of the Indian Penal Code and were sentenced to undergo rigorous imprisonment for 10 years each. Appellant Upendra Singh was further convicted u/s 324 of the Indian Penal Code and was sentenced to undergo rigorous imprisonment for 3 years. He was also convicted u/s 27 of the Arms Act and was sentenced to undergo rigorous imprisonment for 7 years. Appellant, Ajay alias Gayadin, was further convicted u/s 323 of the Indian Penal Code and was sentenced to undergo rigorous imprisonment for one year. The sentences passed against Appellants, Upendra Singh and Ajay alias Gayadin, were ordered to run concurrently.
The prosecution case, in short, is that at about 5 A.M. on 14.5.1982 the informant, Ram Narayan Din (P.W. 1), who happened to be a teacher in Kalyanpur Middle School was going to the school. When he reached near Balahia Coal Bagicha, Appellants came to him and started abusing him. Appellant, Ajay, wielded his lathi on the head of P.W. 1. Appellant, Upendra Singh, fired at him from his pistol causing injuries on the chest of P.W. 1 and also on his right hand. On Hullah, Uma Chandra Din (P.W. 2) the son of P.W. 1 came there. Several persons including the Chaukidar, Chandrika Paswan (P.W. 3) also assembled. The S.I. of Police, Ram Chandra Sharma (P.W. 6) recorded the fardbeyan (Ext.1) of P.W. 1 on the basis of which formal F.I.R. (Ext.2) was drawn up and Punpoon P.S. Case No. 61/82 under Sections 341/307/323 of the Indian Penal Code was instituted against the Appellants. After completing the investigations the police submitted charge sheet.
In this appeal on behalf of the Appellants it has been contended that no occurrence as alleged by the prosecution did ever take place. P.W. 1 might have received the injuries in some other incident but due to darkness (it was early morning) he could not identify the assailants. However, due to previous enmity the Appellants have been falsely implicated in this case.
The Appellants have further contended that in the fardbeyan a motive was alleged for assault on P.W. 1 according to which prior to the alleged occurrence an altercation between the parties had taken place over grazing of cattle in the field of the Appellants. However, during trial this motive as alleged by the prosecution appears to have been changed and it was contended that the alleged occurrence had taken place since P.W. 1 had protested against the abuses hurled towards his daughter a few. days ago by the Appellants. This change in the motive makes the prosecution case doubtful.
The Appellants have further contended that P. Ws. examined in this case have not supported the case of the prosecution. They have pointed out that the medical evidence on record does not support the case of the prosecution. Appellant No. 1, Upendra Singh, was a minor boy of 15 years on the alleged date of occurrence i.e. on 14.5.1982 as his date of birth is 1.3.1969. He could not has been tried alongwith other Appellants as the benefit of Juvenile Justice Act, 19 (in short the "said Act") should have be extended to him. No independent witness has been examined in this case. these grounds, amongst others, it Has been contended that the judgment of conviction of the learned Court below be aside and the Appellants be acquitted.
The only point for decision before me is whether this appeal is fit to be lowed or not.
I will firstly take up for consideration the. evidence adduced on behalf the prosecution to establish the char against the Appellants. In all 8 P. Ws. has been examined in this case. Out of the P.W. 6 is the Investigating Officer. P.W. 6 and 8 are the doctors. P.W. 4 is a for witness. P.W. 1 is the informant him and P.W. 2 is his'' son. P.Ws. 3 and 4 not claim to be the eye witnesses of alleged occurrence and, have not so ported the case of the prosecution. he firstly proceed to examine the evidence P. Ws. with respect, to the alleged occurence.
P.W. 1 is the informant himself his evidence he has supported the (sic) of the prosecution. In his cross examination he has stated that blood had fast on the ground and his clothes were soaked with blood. His blood sta(sic) clothes were not produced in Court. has also stated that in all 4-5 lathi (sic) was given to him and firing had task place twice. So far as P.W. 2 is concerned he has claimed to be an eye witness the alleged occurrence. However, he admitted that he reached the alleged place of occurrence on Hullah and for his father lying down on the ground. (sic) this it would appear that he is not and witness to the alleged occurrence. P.W. 3 and 4 have not supported the case of the prosecution. They have been declared hostile. Their attention was drawn to their alleged statements said to have been made before the police. The Investigating Officer (P.W. 6), however, has not stated that P.W. 3 and P.W. 4 had made those statements before him in course of investigation. Thus the prosecution has failed to prove those contradictions.
I will now take up for consideration the evidence of P. Ws. 3 and 4. P.W. 3 is the Chaukidar. He is said to have reached the alleged place of occurrence and according to the prosecution case he had witnessed the alleged occurrence. In his evidence he has not supported the case of the prosecution on this point. He has stated that on hearing the sound of gun fire he came to the alleged place of occurrence and found P.W. 1 lying on the ground with bleeding injuries. His attention has been drawn to his alleged statement made before the police. However, the contradiction in his evidence could not be taken by tne prosecution from the Investigating Officer (P.W. 6). In his evidence P.W. 6 has admitted that P.W. 3 had only stated that he had seen the accused persons fleeing away from the alleged place of occurrence. No other contradiction in the evidence of P.W. 3 could be taken from P.W. 6. So far as P.W. 4 is concerned, he has not at all supported the case of the prosecution and was declared hostile. His attention was drawn to his alleged statements made before the police. Those contradictions, however, could not be taken from the Investigating Officer (P.W. 6). No other eye witness has been examined in this case. The law on the point of the value of the evidence of a witness declared hostile has been settled by the Hon''ble Supreme Court in the case of Sat Paul v. Delhi Administration (A.I.P. 1976 S.C. 294).
According to the decision if a witness is cross examined by the prosecution which called him, it will not mean that his entire evidence is washed off. The Judge can accept that part of his testimony which he finds reliable. In the present case P. Ws. 3 and 4 have not at all supported the case of the prosecution and as such their evidence is not of any help to the prosecution case. The prosecution has failed to prove any contradiction in their evidence. The evidence of P. Ws.3 and 4 on record completely goes against the prosecution. Thus, on the basis of the evidence on record it is clear that the prosecution has not been able to prove its case beyond all reasonable doubts and on this ground alone the Appellants are entitled to be acquitted.
So far as the motive as alleged by the prosecution is concerned there also is a contradiction. It may be stated here that in a criminal case no motive is required to be alleged by the prosecution for any occurrence. However, it is equally well settled that if the prosecution alleges particular motive for the alleged occurrence it would prove the same. In the Fardbeyan it has been alleged that there was a dispute between the parties from before over grazing of cattle. However during the trial P.W. 1 has changed the motive by stating that the alleged occurrence had taken place since the Appellants had abused his daughter a few days before the alleged occurrence. Surprisingly enough no such motive has been stated in the fardbeyan. This change in the alleged motive by the prosecution also makes the prosecution case doubtful. Moreover, the daughter of P.W. 1 has not been examined.
So far as medical evidence is concerned it also does not support the case of the prosecution. P.W. 8 is Dr. Basudeo Swarup, who has granted the medical certificate in the case. According to him he found three injuries on the person of the informant. In his cross-examination however he has stated that he does not remember whether he has submitted the report to the police or not. It was only on 22.10.1982 that he had received a requisition from the police for the examination of the injured (The alleged occurrence had taken place on 14.5.1982). Earlier he had referred the injured (P.W. 1) to Patna Medical College Hospital and at that time he did not prepare any injury report. So far as P.W. 7 is concerned, he was the Surgical Registrar of P.M.C.H. at the relevant time. He has simply stated that on 14.5.82 P.W. 1 had come for his medical examination. Thus, the medical evidence on record also does not appear to be satisfactory. In this connection a reference may be made to the evidence of the Investigating Officer (P.W. 6) who has stated that he received the injury report on 22.10.1982 from Punpoon Hospital from P.W. 7 who had prepared the same on the same date. As stated above P.W. 8 before referring the injured (F.W. 1) to Patna Medical College Hospital had not even entered his injuries in the injury register. It was only on 22.10.1982 that he got a requisition from the police and submitted his report according to which he- found three injuries on the person of P.W. 1. Thus, the medical evidence on record also does not support the case of the prosecution.
P.W. 1 has stated that after receiving gun shot injuries there was profuse bleeding by which his clothes were soaked with blood. Even the blood had fallen on the ground. It is not clear what happened to the blood stained clothes. The Investigating Officer has not claimed that he has seized the same. Similarly there were empty cartridges which had fallen on the ground and (sic) were collected by the police. The (sic) were not sent for examination by Forensic Expert. From these discuss it would appear that the prosecution not been able to prove its case beyond reasonable doubts and the Appellants entitled to acquittal on the basis of evidence on record.
At the time of hearing, learned Counsel for the Appellants strongly contended before me that of alleged date of occurrence Appellant Upendra Singh, was a minor and there fore the learned trial Court was in a error in holding his trial alongwith Appellants and in convicting and searing him to rigorous imprisonment d(sic) in conflict with the provisions of the Act. This plea has been taken in graph 18 of the Memo of Appeal. o(sic) ground it has been contended the entire trial of the Appellants stand vi(sic)
From the record it appear this Appellant was examined u/s 313 of the Code of Criminal procedure 1973(in short ''the Code'') or (sic) August, 1988 in which he had decided his age to be 19 years. It, however pears that the Court in its assessment opined that his age was 25 years there is some overwriting in it. Has before learned Additional Sessions written statement-cum-notes or are was filed on behalf of the Appellant its paragraph 25 it has been state accused Upendra Singh was a aged only 13 years on 14.5.198 that his date of birth was 1.3.1969 this it would appear that this pleader the alleged date of occurrence this Appellant was minor was taken before learned trial Court before the judge was- pronounced. From the judge however, it appears that the learned Court has completely ignored this has proceeded to pass the judgment of conviction and sentence against all the Appellants including Appellant, Upendra Singh. In the judgment no reason has been assigned for completely ignoring this fact. In course of hearing of this appeal before this Court the Appellants submitted that this was not legal or even proper and in this connection the learned Counsel Mr. Lala Kailash Bihari Prasad, appearing on behalf of the Appellants had placed reliance on the case of Bhola Bhagat v. State of Bihar [1997 (2) P.L.J.R. 161 (S.C.)]. When this plea on behalf of the Appellants was taken before this Court the learned trial Court was directed to hold an enquiry and to record a finding about the age of this Appellant Upendra Singh. It appears that as directed, the learned 7th Additional Sessions Judge, Patna, Shri S.P. Rai has submitted his report dated 31st July, 1998. In course of enquiry *he also examined the report of Joint Secretary of Bihar School Examination Board according to which the Appellant, Upendra Singh, was bom on 1.3.1969. If this date of birth of Upendra Singh is accepted as correct obviously on the alleged date of occurrence he was a minor being aged about 15 years. The original certificate issued by the Secretary School Examination Board is also on the record according to which the date of birth of this Appellant is 1.3.1969. Since the alleged occurrence had taken place on 14.8.1982 obviously this Appellant was below the age of 15 on this date and under law he should have been dealt with under the provisions of Bihar Children Act, 1982. This Act was repealed by Section 63 of the said Act with effect from 2.10.1987 (the date on which this Act came into force) by virtue of Section 63. From this it would appear that on the alleged date of occurrence the Bihar Children Act. 1982 was in-force. However, the charges in this case were framed on 26.4.1988 and the evidence of the witnesses before the learned trial Court started on 24.5.1988. Obviously, therefore, the said Act had come into force before the start of the trial of this case by the learned Additional Sessions Judge in which the judgment was pronounced on 13.12.1988.
In this connection reference may be made to the Full Bench Decision of this Court in the case of Krishna Bhagwan Vs. State of Bihar, . In this case a Full Bench of this Court was faced with a similar situation. According to the facts of the said case the alleged occurrence had taken place on 8.3.1982. Before this Bihar Children Ordinance, 1973 was promulgated which was ultimately replaced by Bihar Children Act, 1982. On the alleged date of occurrence the law as contained in the aforesaid Ordinance and the Act was in force. Later on Juvenile Justice Act, 1986 was enacted by which Bihar Children Act, 1982 was repealed. However, in this decision it was held that, the relevant date for the application of the provisions of the aforesaid law would be the alleged date of occurrence. From this it would appear that if a person was a minor on the alleged date of occurrence his case will have to be dealt with according to the provisions of this law and not according to the provisions of the Code.
In this connection a reference may also be made to the case of Bandela Allaiah v. State of A.P. (1995 Cri.L.J. 1083). This is Bench decision of, the Andhra Pradesh High Court in which also it has been held that the relevant date for the application of the provisions of the said Act would be the alleged date of occurrence and the age of the Appellant on that date. From this it would appear that the law on this point is clear, according to which the relevant date for the application of this Act could be the date of alleged occurrence. This decision has been mentioned with approval in the case of Bhola Bhagat (supra).
On behalf of the State it has been submitted that if the Appellants intended that the provisions of this Act should have been made applicable in this case or atleast in the case of Appellant No. 1, Upendra Singh, they should have made a prayer to that effect before the trial Court failing which the trial Court was guided by his own assessment of the age of this Appellant as recorded during his examination u/s 313 of the Code. I, however, do not find any force in this centenlion. It is well settled that the burden of proving the age of delinquent is not on him and it is for the Court to hold an enquiry about the age to find out whether such a person would be a delinquent Juvenile for the purpose of the Act. It has clearly been held in the case of Bhola Bhagat (supra) that when a plea is raised on behalf of an accused that he was a child within, the meaning of the definition under the Bihar Children Act, 1982 it becomes obligatory for the Court to determine the age as claimed by the accused and to hold an enquiry itself for the determination of the question of age of the accused or cause to be held, if necessary, by asking the parties to lead evidence before trial Court. From this it would appear that it was for the learned trial Court to hold an enquiry or to cause '' an enquiry to be held on this question once the plea of minority has been taken before him. The learned trial Court has completely failed to do so and has totally ignored the plea of this Appellant as taken in paragraph No. 25 of the written statement that on the alleged date of occurrence he was still a minor. It may be mentioned here that this legislation is beneficial legislation and, therefore, should not have been ignored. The Hon''ble Supreme Court has gone to extent of saying that even if this plea of minority is taken for the first time before the Supreme Court, it has to be taken into consideration as held in the case of Gopinath Ghosh Vs. The State of West Bengal, .
From the detailed discuss made above, it becomes perfectly clear me that in the present case, the learned trial Court could not have passed any sentence against Appellant Upendra Singh in view of Section 26 of the said Act will runs as follows:
Special provision in respect of pending cases.-Notwithstanding of thing contained in this Act, all proceedings in respect of a Juvenile pending at any Court in any area on the date in which this Act comes into force in the area, shall be continued'' in that as if this Act had not been passed if the Court finds that the Juvenile committed an offence, it shall (sic) such finding and instead of pa(sic) any sentence in respect of the Juvenile, forward the Juvenile to Juvenile Court which shall pass out in respect of the Juvenile in accordance with the provisions of this (sic) if it had been satisfied on inquiry this Act that the Juvenile has committed the offence.
From this section; it becomes perfectly clear that even if the learned trial Court found that the charges against this Appellant were proved, he co(sic) have sentenced him to any imprisonment. The law required that in a situation this it was obligatory on his part to the procedure as contained in Section (sic) Similarly Section 24(1) of the said Act required that no Juvenile could be comes or tried for any offence together person who is not a Juvenile. Section 24(2) provides that in a case in which a Juvenile has been charged and tried together with a person not a Juvenile, the Court taking cognizance of that offence shall direct separate trials of the Juvenile and the other persons. Since the trial in the present case had started after coming into force of this Act the learned trial Court should have taken the precaution of not holding the joint trial of Juvenile, Upendra Singh, alongwith other accused of this case. I have already noticed in the earlier part of the judgment in the present case the charges were framed on 26.4.1988 after coming into force of this Act which had taken place on 2.10.1987.
From the detailed discussions made above it becomes clear that even on facts the judgment of conviction of the learned trial Court can not be sustained. The prosecution has failed to prove the charges against the Appellant beyond all reasonable doubts. Moreover so far as the case of Upendra Singh is concerned he could not have been sentenced of any term of imprisonment against the provisions of law.
In the result, the impugned judgment of conviction of the learned Court below is set aside and the Appellants are acquitted of the charges framed against them. They are directed to be set at liberty.