JUDGMENT M.C. Jain, J.
1. Both these appeals have arisen out of judgment and order dated 4.12.1981 passed by Sri S.C. Srivastava, the then II Additional Sessions Judge, Muzaffar Nagar in Sessions Trial No. 216 of 1980. Smt. Godhi alias Sukhbiri and her husband Budh Singh are the appellants in Criminal Appeal No. 2875 of 1981 whereas their son Chandan Singh is the appellant in Criminal Appeal No. 3041 of 1981. Chandan Singh has been convicted under Section 302 I.P.C. and sentenced to life imprisonment. The other two appellants have been convicted under Section 302 read with Section 34 I.P.C. and they, too, have been sentenced to life imprisonment.
2. The incident took place on 20.4.1980 at about 8 A.M. in the jungle of village Kajal Hedi, P.S. Shamli, District Muzaffar Nagar and the report was lodged the same day at 10.30 A.M. by Sukhpal Singh P.W. 1, an eyewitness who is brother of the deceased Rajendra Singh. The distance of the police station from the place of occurrence was about 7 miles. Deceased Rajendra Singh was the son of Gyan Singh- brother of the accused appellant Budh Singh, meaning thereby that the three accused appellants are close relatives of the deceased. Gyan Singh, Vijay Singh and Budh Singh, being brothers, divided their agricultural plots amongst themselves by a private arrangement. Plot No. 473 had been divided between Vijay Singh and Gyan Singh in such a way that the eastern portion was in possession of Vijay Singh and the western portion was in possession of Gyan Singh, there being a Mend to divide the two portions. To the west of plot No. 473 was plot No. 474 and it was in exclusive possession of Vijay Singh. To the east of plot No. 473 also was plot No. 469 which was also in possession of Vijay Singh. To the south of plot Nos. 474 and 473 respectively were plot Nos. 475 and 472 in possession of Budh Singh accused. To the south of plot No. 472 was plot No. 471, the northern portion of which was in possession of Budh Singh and the southern portion was in possession of Sukhpal Singh, with a drain running east-west between the two portions. This drain was connected with another drain running north-south from a tubewell of Gyan Singh in plot No. 469 and was situated to the east of plot Nos. 471, 472 and 473. It was alleged that the drain situated in plot No. 471 was exclusively used by Sukhpal Singh for irrigation of his land.
3. On the fateful day and time, Sukhpal Singh P.W. 1 and his brother Rajendra Singh deceased were sowing sugarcane in the portion of plot, No. 473 in possession of their father Gyan Singh. Pheru Singh P.W. 2, Vijay Singh P.W. 3, Mahendra Singh and Lakhmi Chand were also helping them in sowing. The three accused Budh Singh, his wife Godhi alias Sukhbiri and Chandan Singh were sowing sugarcane in their field. Budh Singh and Chandan Singh started dropping earth in the drain of Gyan Singh. Rajendra Singh deceased objected to it on the ground that it would be required to be cleaned. On the objection raised by the deceased Rajendra Singh, the three accused appellants became furious and retorted back that they would teach about it then and there. Budh Singh and his wife caught hold of Rajendra Singh and Chandan Singh accused stabbed Rajendra Singh with a knife in the abdomen. He fell down immediately. Sukh Pal Singh and Ors. lay Rajendra Singh on a cot and started taking him to the hospital. However, when they reached near the temple in the village, Rajendra Singh expired. Sukh Pal Singh went to the police station and lodged the F.I.R. by oral narration. A case was registered and investigation started at the hands of S.I. Pitam Singh P.W. 7. He reached the spot, prepared the inquest report of the dead body of the deceased and after completing necessary formalities sent it for post-mortem.
4. The post-mortem over the dead body of the deceased was conducted on 21.4.1980 at 12 O' clock noon by Dr C.S.Tripathi P.W. 4.
5. The deceased was aged about 32 years and about 1-1/4 days had passed since he died. The following ante-mortem injuries were found on his person:
1. Punctured wound 3/4" x 1/4" x abdominal cavity deep on the upper part of the abdomen 31/2 " above the umbilicus at 11 O' clock position. Both the margins clean cut. The wound directed backwards and upwards and to the right side.
2. Contusion 3" x 1" on the left side of the back, upper 13.
3. Abrasion 11/2 " x 1/2 " on the left side of the back, 11/2" above injury No. 2.
6. The cause of death was shock and haemorrhage due to antemortem injuries.
7. The defence was of denial.
8. Besides medical and formal evidence relating to investigation, the prosecution relied on the testimony of the eyewitnesses Sukhpal Singh P.W. 1, Pheru Singh P.W. 2 and Vijay Singh P.W. 3. The evidence adduced by the prosecution appealed to the learned trial judge who recorded the impugned judgment.
9. We have heard Sri P.N. Mishra, learned Senior Advocate for the appellants and Sri K.P. Shukla, learned A.G.A. from the side of the State.
10. The submissions from the side of the appellants are that the witnesses examined by the prosecution were related and interested and were incapable of being believed. Secondly, in any view of the matter, Budh Singh and his wife could not be deemed to have shared the common intention of the third appellant Chandan Singh (he stabbed the deceased). Thirdly, Chandan Singh was less than 16 years of age at the time of the incident and as such no sentence could be passed against him even if any charge was found to be proved against him.
11. We propose to examine these submissions one by one.
12. Sukhpal Singh P.W. 1 is the brother of the deceased. The accused appellants are also his close relatives. Budh Singh is his uncle. Godhi alias Sukhbiri is his aunt being the wife of Budh Singh and Chandan Singh is his cousin being the son of Budh Singh and Godhi alias Sukhbiri. The gist of his testimony is that on the fateful day and time at about 8 A.M., he, his brother Rajendra Singh deceased, his uncle Vijay Singh P.W. 3, Mahendra Singh son of Vijay Singh, Pheru and Lakhmi Chandra were sowing sugarcane in his field. The accused appellants were sowing sugarcane in their field which was adjacent to his field. Chandan Singh and Budh Singh started dumping earth in his drain and Rajendra Singh objected to it in loud tone, asking them not to do so in that it would be required to be taken out. Thereupon, Chandan Singh and Budh Singh retorted that they would tell him at that very place. Chandan Singh, Budh Singh and Godhi alias Sukhbiri then agitatedly moved towards Rajendra Singh. Budh Singh and Godhi alias Sukhbiri caught hold of Rajendra Singh and Chandan Singh stabbed him. Rajendra Singh, by then, had proceeded 3 to 4 paces east wise in the field of Vijay Singh. Receiving knife injury, Rajendra Singh fell down. He, Vijay Singh, Pheru Singh, Lakhmi Chand and Mahendra Singh ran to that side, but before they could do anything Chandan Singh had already stabbed Rajendra Singh. He bandaged the wound of Rajendra Singh by tearing his Dhoti and after being put on a cot, he was being taken to the hospital, but at a distance of 2 1/2 or 3 furlongs Rajendra Singh expired near the temple of the village. He stopped the cart there and went to P.S. Shamli where he lodged the F.I.R. by oral narration.
13. The testimony of Sukhpal Singh P.W. 1 has been corroborated in material particulars by Pheru Singh P.W. 2 who is the first cousin of accused appellant Budh Singh. He was also helping the deceased in sowing the sugarcane crop in the field of Gyan Singh (father of Sukhpal Singh P.W. 1 and Rajendra Singh deceased) with Vijay Singh P.W. 3, Mahendra Singh, Sukhpal Singh and Lakhmi Chand. He is named as an eyewitness in the F.I.R. Corroborating Sukhpal Singh P.W. 1, he stated that when Chandan Singh and Budh Singh (who were also sowing sugarcane in their field in the southern side) started putting earth in the drain, Rajendra Singh objected to it. The accused persons angrily replied that they would teach him there. Rajendra Singh stopped ploughing and moved to the field of Vijay Singh from his own field. The three accused persons reached him there. Budh Singh and Godhi alias Sukhbiri caught hold of him (Rajendra Singh deceased) and Chandan Singh stabbed him with a knife. Receiving the injury, Rajendra Singh fell down. He and Ors. started taking care of Rajendra Singh and the accused persons ran away. His statement also falls in line of Sukhpal Singh P.W. 1 regarding taking him (Rajendra Singh) on a cot to the hospital and his death near the temple of the village.
14. Vijay Singh P.W. 3 is another eyewitness whose name is also there in the F.I.R. He is own brother of the accused appellant Budh Singh. Gyan Singh (father of Sukhpal Singh P.W. 1 and Rajendra Singh deceased) is his elder brother. They (brothers) had a joint chak which they had divided amongst themselves by a private partition. Supporting the other two eyewitnesses as to the actual occurrence, he stated that he was also helping with others in sowing of sugarcane in the field of Sukhpal Singh and Rajendra Singh. While sowing sugarcane in their own field, the accused Budh Singh and Chandan Singh started placing earth in the drain which was objected to by Rajendra Singh. The accused then furiously replied that reaching there they would tell him about it. Stopping ploughing, Rajendra Singh advanced 3-4 paces towards the field of this witness. The accused Budh Singh and Godhi alias Sukhbiri caught hold of Rajendra Singh and Chandan Singh stabbed him. Receiving the injury, Rajendra Singh fell down. The accused then ran away. His statement is consistent with that of other two eyewitnesses regarding taking Rajendra Singh injured on a cot to the hospital and his death near the temple.
15. It deserves mention that the medical evidence is wholly in harmony with the ocular account of the incident. The fatal wound sustained by the deceased was a punctured wound on abdomen, detailed as ante-mortem injury No. 1 above. The other two injuries sustained are contusion and abrasion which could be sustained by the fall by the victim on sustaining stab injury.
16. It is a case where all the eyewitnesses, the deceased and the accused persons are close relatives, virtually belonging to one family. So, there is no possibility of the false implication of the accused persons. The incident occurred when Sukhpal Singh P.W. 1 and Rajendra Singh deceased were sowing sugarcane in their field with the help of Pheru Singh P.W. 2 (real first cousin of the accused appellant Budh Singh), Vijay Singh P.W. 3 (read brother of the accused appellant Budh Singh) and Ors. None of the eyewitnesses had any animus to falsely implicate the accused appellants who are husband, wife and their son. It is common knowledge that several persons are required in sowing operation of sugarcane and it was not unusual that Sukhpal Singh P.W. 1 and Rajendra Singh deceased in sowing the crop of the sugarcane in their field were being helped by their close relatives like Pheru Singh P.W. 2 and Vijay Singh P.W. 3 as also some others. When the witnesses are close relatives of the deceased as well as of the accused, their relationship would add to the value of their evidence, particularly when there is no reason of false implication of the accused.
17. Agreeing with the learned trial judge, we see no reason to doubt the testimony of the three eyewitnesses who withstood the test of cross-examination firmly. Their presence at the spot was natural. It is clinchingly established by their testimony that a brief altercation took place between Rajendra Singh deceased and accused appellants over the dumping of earth by the latter in the drain of the former who objected to it. The accused appellants took ill of the objection raised by Rajendra Singh and threateningly advanced towards him. The evidence is also firm that Budh Singh and Godhi alias Sukhbiri caught hold of Rajendra Singh and their son Chandan Singh stabbed him in the abdomen resulting in his death. The criticism of the testimony of the eyewitness from the side of the accused appellants is wholly unfounded.
18. The question now arises as to what offence came to be committed by the accused appellants. We first deal with the case of accused appellant Chandan Singh who actually stabbed the victim. It is clear from the evidence on record that the incident occurred all of a sudden, following an altercation between the victim and the accused. It is also to be noted that the single stab wound was inflicted by Chandan Singh on the deceased, meaning thereby that the blow was not repeated The incident was not pre-planed. To say shortly, it occurred suddenly when the accused started dumping earth in the drain of Rajendra Singh and he objected to it. It is also there in the testimony of Sukhpal Singh P.W. 1 that his brother Rajendra Singh had loudly protested against the dumping of earth by the accused in the drain and had commanded them not to do so. The accused were dumping earth in the drain in them southern side across which there was another sugarcane field of Rajendra Singh deceased, though at the time of the incident Rajendra Singh and Ors. were sowing sugarcane in another field in the northern side shown by letter "C' in the site plan. The accused, furiously advancing towards Rajendra Singh, retorted the objection of Rajendra Singh by saying that they would tell him about dumping of earth then and there. He (Rajendra Singh), had also advanced 3-4 paces towards the field of Vijay Singh on the eastern side, before he was stabbed by Chandan Singh. It is there in the testimony of Pheru Singh P.W. 2 also that the objection against dumping of earth by the accused had been raised by Rajendra Singh angrily. It is clear that in a fit of rage during the course of an altercation, Chandan Singh gave a single knife blow to his own cousin brother. The objection raised by Rajendra Singh against dumping of earth by him and his parents made him to loose his cool. Intention to kill was not there. The case of Chandan Singh is covered by Exception 4 of Section 300 I.P.C. The offence was committed by him without premeditation in the heat of passion. We are of the view that he would be imputed intention of causing such bodily injury to the victim as was likely to cause death. Therefore, his case is covered under Part I of Section 304 I.P.C.
19. At this stage, we intend to deal with the third argument of the learned Counsel for the accused appellants that at the time of incident, Chandan Singh was less than 16 years of age and no sentence can be passed against him. We note that his statement under Section 313 Cr.P.C. was recorded on 17.11.1981. At that time, he gave his age as about 17 years. However, the learned trial judge recorded his age as about 20-22 years as per his estimation. He also dealt with this aspect of the matter elaborately in paragraph 42 of the judgment. The accused appellant Chandan Singh filed his original High School certificate Ext.Kha-4 in which his date of birth is mentioned as 8th September 1964. The incident having occurred on 20.4.1980, the argument of the learned Counsel is that the High School certificate conclusively proved him at the time of incident to be less than 16 years of age and, therefore, he deserves to be afforded the benefit of provisions of the then prevailing the U.P. Children Act, 1951.
20. Having given our anxious consideration to the matter, we are of the clear view that accused Chandan Singh was definitely over 16 years of age at the time of the occurrence. We wish to spell out our reasons in this behalf We note that Sukhpal Singh P.W. 1 (brother of the deceased and cousin of accused Chandan Singh) was aged about 40 years when he was examined in the Court on 5.8.1981. He was questioned about the age of the accused Chandan Singh and he refuted the suggestion that he was aged about 16 years. He empathetically stated that he was aged about 22-23 years. He being the cousin of Chandan Singh accused and much elder to him would have personal knowledge about his age. Indeed, nobody can have personal knowledge about his own age and own statement of Chandan Singh made on 17.11.981 under Section 313 Cr.P.C. about his age as about 17 years could only be based on hearsay with no value. It is also to be noted that the learned trial judge further observed in paragraph-42 of the judgment that he closely observed the accused Chandan Singh and found that his moustaches had fully come up with a grown up beard over the entire length of his cheeks and chin. According to him, he could not have been less than 20 years of age at the time of his statement under Section 313 Cr.P.C. and would have been more than 16 years of age at the time of the incident.
21. On going through the record, we find that it was another Sessions Judge, namely, Sri R.K.Gupta, who had rejected the bail application of the accused Chandan Singh on 21.5.1980. The copy of rejection order is there on record. The sole ground pressed in support of the bail application was that he was a minor. Accused Chandan Singh was before him and, observing him, he stated in the order that he appeared to be quite a healthy boy. He rejected the ground of minority taken in support of the bail application. As said above, this was the observation of another Judge who had heard his bail application on 21.5.1980. Despite that, no evidence, oral or documentary, was produced from the side, of the accused in support of the contention that he was aged about 16 years at the time of the incident. He could opt for his medical examination by ossification test at the relevant time in support of the plea that his age was less than 16 years at the time of the incident. Nothing of the kind was done, though his bail application on the ground of age was rejected by the Sessions Judge on 21.5.1980. The time near about the date of incident was. most appropriate for the determination of his age by medical test. The accused did not care for such evidence being brought on record. Naturally there could be no point in subjecting him to medical test much later at the time of judgment of the lower Court on 4.12.1981.
22. Accused Chandan Singh has simply relied upon his High School certificate to avoid the consequences of the crime committed by him. It is now well settled by the various decisions of the Supreme Court that the date of birth stated in matriculation certificate is not sacrosanct or conclusive. We may refer with profit to a decision rendered by a Bench of five Hon'ble Judges of the Supreme Court in the case of Brij Mohan Singh v. Priya Brat Naram in which it has, inter-alia, been observed that in actual life it often happens that a person gives false age of the boy at the time of his admission so that later in life he would have an advantage when seeking public service for which a minimum age for eligibility is often prescribed. In that case, the age recorded in certificate issued by Bihar School Examination Board for passing matriculation examination was not accepted to be conclusive. Relying on this decision and having regard to the facts and evidence of the present case, as discussed above, it is not possible to accept that the accused Chandan Singh was less than 16 years of age at the time of the commission of this crime. He was rather in the neighbourhood of 20 years of age when he committed this crime.
23. Having dealt with the argument concerning the age of the accused Chandan Singh, we propose to consider the case of his parents Budha Singh and Smt. Godhi alias Sukhbiri. As per the evidence discussed above, they caught hold of the victim when Chandan Singh stabbed him. Learned A.G.A. has argued that they shared the common intention of their son Chandan Singh when he stabbed the victim. We have held above that the incident occurred all of a sudden following a verbal altercation between the deceased and the accused over dumping of the earth in the drain. The common intention is to be inferred from the circumstances, particularly the part played by the accused such as weapon used and injury inflicted as well as meeting of the minds amongst the accused who are to be held constructively liable. In the case at hand, both the sides were engaged in sowing sugarcane crop in their fields. During such operations, following an altercation between the deceased and accused, the latter menacingly advanced towards the former Accused Budha Singh and Smt. Godhi alias Sukhbiri caught hold of the victim and Chandan gave a single knife blow in his abdomen. It is there in the testimony of Sukhpal Singh P.W. 1 that Chandan Singh took out the knife from his folds and stabbed Rajendra Singh. On cumulative consideration of the facts and circumstances, it cannot be held that the accused Budh Singh and his wife Godhi alias Sukhbiri shared the common intention of their son Chandan Singh in stabbing Rajendra Singh. It was all of a sudden that Chandan Singh took out a knife from the folds of his apparel and gave a vicious knife blow to Rajendra Singh. The common intention of his parents could only to chastise Rajendra Singh or to cause simple hurt to him for his audacity or misdemeanour in objecting to the dumping of the earth by them in the drain. Therefore, in our considered opinion, these two only committed offence punishable under Section 323 read with Section 34 I.P.C.
24. We finally come to the sentence part. So far as the accused appellants Budha Singh and his wife Smt. Godhi alias Sukhbiri in Criminal Appeal No. 2875 of 1981 are concerned, Budh Singh was aged about 55 years at the time of his statement under Section 313 Cr.P.C. on 17.11.1981. He must be about 75 years of age now. Smt. Godhi alias Sukhbiri gave her age at that time as about 40-45 years. She, too, must be about 60-65 years of age now. The record shows that she remained in jail from 21.4.1980 to 25.4.1980. Budh Singh remained in jail from 23.4.1980 to 25.4.1980. After conviction on 3.12.1981, the bail was granted to them on 8.12.1981. We are of the view that they having been convicted only under Section 323 read with Section 34 I.P.C., the ends of justice would be served by sentencing each of them to payment of fine of Rs. 1000/- or three months' rigorous imprisonment in default of payment of fine.
25. So far as the accused appellant Chandan Singh of Criminal Appeal No. 3041 of 1981 who is found to have committed offence punishable under Part I of Section 304 I.P.C. is concerned, we are of the view that the ends of justice would be met by awarding five years' rigorous imprisonment to him and to pay a fine of Rs. 25,000/- or to undergo two years' rigorous imprisonment in default of payment of fine. It would also be proper to pay the amount of fine, if realised to the wife of the deceased or in her absence to the deceased's next immediate heir as compensation.
26. Our finding is as under:
The two appeals are partly allowed. The conviction of accused appellants Budha Singh and Smt. Godhi alias Sukhbiri of Criminal Appeal No. 2875 of 1981 is converted to Section 323 read with Section 34 I.P.C. with a sentence of payment of fine of Rs. 1000/- by each of them or to undergo rigorous imprisonment for three months in default of payment of fine.
27. The conviction of the accused appellant Chandan Singh of Criminal Appeal No. 3041 of 1981 is converted from Section 302 I.P.C. to Part 1 of Section 304 I.P.C. He is sentenced to undergo rigorous imprisonment for five years for the said offence and to pay a fine of Rs. 25,000/-. In default of payment of fine, he shall undergo two years' further rigorous imprisonment. If the amount of fine is realised, the same shall be paid to the wife of deceased Rajendra Singh as compensation. In her absence, the compensation shall be paid to the next immediate heir of Rajendra Singh.
28. Budha Singh and Smt. Godhi alias Sukhbiri of Criminal Appeal No. 2875 of 1981 are directed to deposit the amount of fine within two months from the date of this judgment, failing that they shall be arrested to serve out the sentence of imprisonment in default of payment of fine.
29. The accused appellant Chandan Singh of Criminal Appeal No. 3041 of 1981 shall be arrested immediately and sent to jail to serve out the sentence of imprisonment passed against him under Part I of Section 304 I.P.C.
30. The Chief Judicial Magistrate, Muzaffar Nagar shall send first compliance report within two months from the date of receipt copy of this order and the other one after 3 1/2 months (about the deposit of fine by the accused appellants Budha Singh and Smt, Godhi alias Sukhbiri).