JUDGMENT Mukteshwar Prasad, J.
1. Accused Ramesh son of Kamla Shanker Yadav has preferred this appeal against the judgment and order-dated 15.5.1980 passed by Sri D.C. Srivastava, the then Additional Sessions Judge, Gyanpur, Varanasi whereby he convicted the accused under Section 307 I.P.C. and sentenced him to undergo rigorous imprisonment for a term of four years.
2. Briery stated the facts of the case leading to the prosecution of the appellant were as under:
3. Kamla Shanker Yadav, father of the appellant and PW 2 Sarju were close neighbors in village Gorakhpur Police Station Bhadohi, Varanasi.
4. The female members of the family of Kamla Shanker Yadav used abusive language to the members of Sarju's family and they were having strained relations. On 6.4.1978 at about 11.00 a.m. when she-buffalo owned by Bharat Lal reached the house of Kamla Shanker Yadav and ate some grains which were being dried up outside the house. whereupon alteration and exchange of hot words took place between Ramesh and Bharat Lal. Bharat Lal son of Sarju asked Ramesh not to abuse him. He lost his temper and threatened to teach him a lesson.
5. On 7.4.1978 Sarju, and his son Bharat Lal went to attend a marriage in village Mathurapur. After having dinner and enjoying Birha, both father and son returned home at about 1,30 a.m. and slept on two cots under Neem tree. At about 2.00 a.m., on 8.4.1978, Bharat Lal was stabbed by Ramesh. He raised hue and cry. Sarju woke up and he too raised an alarm. A number of co-villagers including Raj Bali and Chandra Bali armed with lathies and flashing their torches arrived there and saw the accused Ramesh inflicting injuries on the neck of Bharat Lal and running away. He was chased by the witnesses but could not apprehended.
6. The injured (Bharat Lal) was taken to Government Hospital, Bhadohi on a cot by his father where Dr. R.V. Singh, Medical Officer, examined his injuries at 5.10 a.m. on 8.4.1978 and found the following injures: -
1. Horizontal incised wound over left lateral neck at the level of angle of mandible 10 cm. x 1 cm. x muscle deep. Margins clean cut, well defined, fresh bleeding present.
2. Horizontal incised wound over left lateral neck 2 cm. below injury No. 1, 9 cm. x 1.5 cm. x muscle deep Margins clean cut well defined, fresh bleeding present.
7. According to Dr. Singh, both the injuries were caused by sharp edged weapon like knife and margins were clear cut and well defined. The injuries were bleeding and were kept under observation. Both the injuries were fresh. Dr. Singh deposed that injuries could be caused on 8.4.1978 at 2 O'clock in the night and injuries were on vital part of the body.
8. The case was investigated by PW 6 S.I., Kailash Nath Tripathi. He investigated the case as usual. He collected blood stained Kathari and prepared Fard Supurdiginama on 8.4.1978. The investigating Officer prepared site plan and after completing investigation submitted charge sheet against 1 accused Ramesh.
9. Accused Ramesh was charged under Section 307 of the Penal Code on 16.4.1980 to which he pleaded not guilty.
10. In order to prove its allegations, the prosecution examined PW I Head Moharrir Dhanahjay Singh who proved Chik report and entry in the G.D. PW 2 Sarju is father of injured and an eyewitness. PW 3 Raj Bali is said to be an eyewitness. PW 4 Dr. R.V. Singh is the Medical Officer who proved the medical report and testified that both the injuries could be fatal. PW 5 Bharat Lal, is the injured. PW 6 S.I. Kailash Nath Tripathi is Investigating Officer of the case.
11. Accused denied all accusation leveled against him and pleaded his false implication on account of enmity between the parties. He admitted that female members of both the "families used filthy language. No evidence was led in defence.
12. After a careful appraisal of the evidence on record, learned Judge held that the prosecution had succeeded in establishing its case beyond doubt. He, therefore, found the accused guilty and sentenced him, as mentioned above.
13. This appeal was heard by Hon'ble R.K. Singh, J. and conviction of the appellant was upheld but sentence was reduced to two years rigorous imprisonment vide judgment and order-dated 2.4.1997.
14. The appellant filed S.L.P. before Hon'ble Supreme Court which was granted and Hon'ble Supreme Court allowed the appeal and set aside the judgment and order of this Court dated 2.4.1997 and remanded the matter for disposal of the appeal in accordance with law and in the light of the observations made.
15. I have heard Sri D.S. Tewari, learned Counsel for the appellant and learned A.G.A. at length and perused the record carefully.
16. Learned Counsel appearing for the appellant has not seriously assailed the finding of the Court below. He submitted that the parties were admittedly having stained relations since long and as such, there was every possibility of the false implication of the appellant in the case which took place in the odd hours of the night. He, however, strenuously contended that learned Court below committed error of law in sentencing the appellant who was a child within the meaning of U.P. Children Act, 1951 and he was a young lad aged about 14 years on the date of commission of the offence. He drew my attention to the statement of accused recorded under Section 313 Cr.P.C. wherein he disclosed his age as 16 years on 12.5.1980. The offence in question took place on 8.4.1978. which means that appellant was a child aged about 14 years and as such, he could not be sentenced to any term of Imprisonment under Section 27 of U.P. Children Act. He further contended that learned trial Judge has not given his own estimate regarding age of the appellant and as such, the statement of the appellant has to be taken as correct. He placed reliance on the following two decisions of the Supreme Court of India: -
1. Sri Krishna alias Pandit v. State of U.P. 1990 CRI.L.J. 2650
2. Jayendra and Anr. v. State of U.P. 1982 CRI.L.J 1000 : AIR 1782 SC 685
17. I have considered the submissions made on behalf of the parties and gone through the evidence on record. It is true that parties were having strained relations prior to the incident. Enmity is a double-edged weapon and it cuts both ways. Therefore, prudence enjoins that Court should scrutinize the evidence with great care arid caution.
18. In The instant case, the prosecution examined P.W. 2 Sarju, the informant, P.W. 3 Raj Bali, one the eyewitnesses and P.W. 5 Bharai Lal, the injured to prove its story. Besides, doctor who examined the injuries and Investigating Officer were also examined.
19. First of all, I find that the incident in question took place at about 2 a.m. on 8.4.1978 and incident was reported to the local police in writing by father of the boy who is an eyewitness also at 4.50 a.m. at the Police Station situated at a distance of 3 kms. It means the F.I.R. was lodged promptly and there was no question of any consultation. Similarly, I find that the injuries of Bharat Lal "were examined by P.W. 4 Dr. R.V. Singh, Medical Officer of the Civil Hospital, Bhadohi on 8.4.1978 at 5.10 a.m. He found two incised wounds on left lateral neck. Thus, it is clear that medical examination also took place within reasonable time and promptly and in the opinion of the doctor, both the injuries were dangerous to life being or the neck which is a vital part of the body.
20. So far as ocular testimony is concerned, P.W. 5 Bharat Singh supported the prosecution story in to and testified in clear words that two days prior to the incident, the appellant had used abusive language and on his protest threatened him to teach him a lesson. Thus, there was a motive also for committing the crime.
21. According to father and son, both had gone to attend the marriage in village Mathurapur and returned home at about 1.30 a.m. At about 2.00 a.m. accused stabbed on the neck. Bhoiat Lal woke up and raised alarm. Ramesh gave a second knife blow on his beck. On hearing the cries of his son, Sarju and his neighbours Chandra Bali and Raj Bali woke up and saw the accused running away. The witnesses chased the accused but he could not be apprehended. There is sufficient and reliable evidence on record that father and son were sleeping in their Sehan under a Neem tree and there was sufficient light of electric bulb, which was burning at the pumping set. The appellant being a co-villager of the injured and witness was well known to them and as such, there was no difficulty in recognizing in the fateful night.
22. P.W. 3 Raj Bali corroborated the testimony of father and son and disclosed that his house is also very close to the house of Sarju. He was also sleeping in Sehan in front of his house and woke up on hearing the cries of Bharat Lal. He saw the accused giving knife blow to Bharat Lal and chased him.
23. S.I. Kailash Nath Tripathi, Investigating Officer of the case categorically slated that he found blood on the Kathari and Rajai, which were lying on the cot of the injured. He collected blood stained earth also.
24. All the three witnesses including injured were subjected to lengthy cross-examination but nothing could be elicited to show that they have not spoken the truth.
25. After a close scrutiny and analysis of the entire evidence on record, I find that learned trial Judge committed no illegality in appraisal of the evidence on record and rightly found the appellant guilty for committing an offence punishable under Section 307 I.P.C. Undoubtedly, the appellant had a clear intention to kill Bharat Lal. He gave two knife blows on the neck, which is a vital part of the body. Therefore, the conviction of the appellant, in my opinion, under Section 307 I.P.C. is sustainable.
26. I, however, find force in the contention of learned Counsel for the appellant that appellant was a child as defined under Section 2(4) of the U.P. Children Act ((hereinafter) referred to as the Act), and as such, he could not be sentenced to the imprisonment for any term, as provided under Section 27 of the Act. In the instant case, the appellant disclosed his age as 16 years on 12.5.1980. The incident took place on 8.4.1978. It means, he was 14 years old on the date of occurrence. It is noteworthy that the trial Judge has not given his own estimate regarding age of the appellant. In the judgment also, the Court below observed that accused is young man but his approximate age was not given. I have, therefore, no option but to accept the plea raised on behalf of appellant that in any view of the matter, the appellant was child below 16 years of age on the date of occurrence and he was entitled to get the benefit of the provisions of the Act.
27. The Apex Court in Pradeep Kumar v. State of U.P. 1993 Alld. L.J. 1362 maintained the conviction of the appellant under Sections 302/34 I.P.C. but quashed the sentence. The appellant was aged about 15 years on the date of occurrence Therefore, in view of the decision of the Apex Court, I hold that the conviction of the appellant is sustainable but sentence passed against him by the trial Court is liable to be quashes.
28. In the result, the appeal is partly allowed. The conviction of the appellant under Section 307 I.P.C. is upheld but sentence imposed on him is hereby quashed.