Pramod Kumar Srivastava, J@mdashThis appeal has been filed against the judgment dated 24.8.1994 passed by VIII Additional Sessions Judge, Bareilly in Sessions Trial No. 121 of 1992, State v. Manglee, under section 302, I.P.C., P.S. Hafizganj, District Bareilly. The prosecution case relating to sessions trial in brief is that Veerpal son of Sundar Lal aged about four years was missing from his house of village Navadia Vamanpuri, P.S. Hafizganj, District Bareilly since 25.09.1991, 2:00 a.m. He was last seen in front of his house at 2:00 p.m. in afternoon of 25.09.1991, when Manglee son of Umrai Lal Kurmi of same village came near him and thereafter he was seen going with Manglee. When Veerpal did not return, men Manglee was inquired, who pleaded ignorance about Veerpal. Later Prem Raj and Ganga Singh of same village had informed the complainant Gopal Dev, the uncle of Veerpal, that they had seen Veerpal with Manglee at about 3:00 p.m. near the sugarcane field of Bahadur Singh, then complainant and other persons went near sugarcane field of Bahadur Singh and saw Veerpal lying dead in the field. There were injuries over his body and his knicker was also lying separately. Earlier Manglee had attempted to satisfy his unnatural lust with Veerpal but could not succeed, so complainant Gopal Dev believed that it was Manglee, who after satisfying his lust, had committed murder of Veerpal. Then he reported the matter in police by his written report dated 26.9.1991 at about 3:00 p.m. On the basis of this report, Case Crime No. 260 of 1991, under sections 302, 201, I.P.C. was registered and after completion of investigation, the police had submitted charge-sheet against accused Manglee.
2. On the basis of charge-sheet received in the matter, Sessions Trial No. 121 of 1992, State v. Manglee, was registered in which accused was charged of offences under sections 302, 377, I.P.C. The accused denied the charges and requested for his trial.
3. The prosecution side had examined PW-1, Gopal Dev, the complainant, PW-2 Chameli Devi, the mother of deceased Veerpal, PW-3 Ganga Singh, PW-4 Prem Raj, PW-5 Bahadur Singh, PW-6 Mithai Lal, PW-7 Dr. Sudhir Chandra, PW-8 Karanveer Singh, PW-9 S.I. Nawab Singh, PW-10 S.I. N.N. Pandey. These witnesses had proved documentary as well as material exhibits of the prosecution side.
4. After closure of prosecution evidence, the statement of accused Manglee under section 313, Cr.P.C. was recorded, in which he had denied the prosecution case and stated that evidences adduced against him are false and concocted, no weapon was recovered on his information, case was registered against him due to enmity, complainant had intention of usurping his land and the witnesses were relatives of complainant. Defence side had not adduced any oral or documentary evidence.
5. After affording opportunity of hearing to parties, the trial court, namely, VIIIth Additional Sessions Judge, Bareilly had passed its judgment dated 16.8.1994, by which accused was convicted for the charge of offence under sections 302 and 377, I.P.C. Thereafter learned Sessions Judge heard the accused on the point of quantum of sentence and passed order, by which accused Manglee was sentenced for imprisonment of life for the charge of section 302, I.P.C. and was convicted for rigorous imprisonment of ten years for the charge of section 377, I.P.C. It was ordered that both the sentences would run concurrently. Aggrieved by this judgment of conviction and sentence, present appeal has been preferred by accused Manglee.
6. We have heard arguments of Sri. Yogesh Srivastava, learned counsel for the appellant, and Sri. A.N. Mulla, learned A.G.A., perused the record of the case and gone through the arguments adduced.
7. PW-7 Dr. Sudhir Chandra had carried out the post-mortem of dead body of Veerpal and prepared post-mortem report. He proved that following injuries were found on the dead body of Veerpal at the time of postmortem:--
"1. Incised wound 3 cm x 2 cm x muscle deep on the left side on the upper side.
2. Incised wound 3 cm x 2 cm x muscle deep left side towards the back.
3. Incised wound 2 cm x 1 cm x muscle deep 2 cm below injury No. 1.
4. Incised wound 4 cm x 3 cm x muscle deep towards the back of the neck above.
5. Incised wound 17 cm x 5 cm x bone deep on neck below the thiaro illegible cartridge towards the front.
6. Incised wound 6 cm x 4 cm x muscle deep on the right side scapula region.
7. Incised wound 2 cm x 0.5 cm on scrotum region towards lower side."
8. PW-7 Dr. Sudhir Chandra also deposed that in internal examination of the body, he found the cut in wind pipe and blood vessels on both the side of neck, and cut also found on the blood vessels of neck. From the believable evidence of PW-7, Dr. Sudhir Chandra, it has been established that cause of death of Veerpal was due to incised wound on neck and cutting of wind pipe and blood vessels of neck. The injury No. -7 on the dead body of Veerpal was proof of some unnatural act being committed with him before his death. From the evidence of PW-7 Dr. Sudhir Chandra, it was established that on 25.9.1991 at any time in the afternoon Veerpal was murdered after unnatural overt act.
9. All the witness of fact especially PW-3 Chameli Devi, the mother of deceased Veerpal had stated that on the date of incident, Veerpal was playing in front of his house in village Navadia Vamanpuri in afternoon at about 2-2:30 p.m. when accused-appellant Manglee came there. PW-2 also deposed that she had seen that Veerpal was going with Manglee at that time. PW-3 Ganga Singh of same village had also deposed that on the date of charged incident, he had seen Veerpal and Manglee near the field of Bahadur Singh at about 3:00 p.m. in evening. PW-4 Prem Raj of same village also deposed on oath that he had seen Manglee going with Veerpal near Government tube-well at about 3:00 p.m. The statement of these two witnesses, PW-3 and PW-4 were found believable. There was no contradiction in their statement. PW-2 and PW-3 or PW-4 had no earlier enmity or ill will against accused/appellant and their evidences are believable which support prosecution case and the charge. The prosecution case is supported by evidence of these witnesses of fact as well as from medico legal evidence. Time of death of Veerpal was about same when Veerpal and Manglee were seen together near field of Bahadur Singh in village Navadia Vamanpuri.
10. Though there is no direct evidence of unnatural offence against deceased Veerpal but medico-legal evidence, especially the ante-mortem injuries were proved by PW-7 Dr. Sudhir Chandra, which were found in over body of deceased are proof of the fact that carnal intercourse have been committed against him before his death. The evidence of PW-7 Dr. Sudhir Chandra and injuries found over body of deceased are proof of fact that after unnatural carnal intercourse/offence with Veerpal, he was killed by some sharp edged weapon, which resulted in the ante-mortem incised injuries found over body of the deceased.
11. Learned counsel for the appellant contended that there was no eye-witness of either carnal intercourse or murder, therefore, appellant should be given benefit of doubt. This portion of argument of learned counsel for the appellant is correct to the extent that there is no eye-witness, who had seen the offence of carnal intercourse or murder of Veerpal, but from the minute perusal of evidences available on record of the original case, it is believably proved that all the available circumstantial evidences are such, which may infer only towards guilt relating to charges levelled against appellant Manglee. It is believably proved that Veerpal was playing in front of his house at about 2-2:30 p.m. in the day when Veerpal came there. Thereafter PW-2, the mother of Veerpal had seen him going with Manglee after some time Manglee was seen going with Veerpal near Government tubewell by PW-4 at about 3:00 p.m. Immediately after that PW-3 Ganga Singh had seen appellant Manglee with Veerpal near sugarcane field of Bahadur Singh; and after that no one had ever seen Veerpal alive. Medico-legal evidences proved that at about 3:00 p.m., soon after unnatural offence of carnal intercourse was committed with Veerpal, he was murdered by sharp edged weapons. During investigation, appellant Manglee had led the Investigating Officer to the recovery of blood stains Hansiya (sharp edged reaper used in harvesting, which may also be the weapon of murder) near Government tube-well. This fact was proved by PW-5 Bahadur Singh as well as by Sub-Inspector Nawab Singh, the Investigating Officer, who had proved Ext.-1, Hansiya as well as memorandum of recovery of Hansiya, Ext. Ka-9. The recovery of knicker of deceased near his dead body along with ante-mortem injury No.-7 found over his body are also very important evidence of unnatural carnal offence with him. Neither the Investigating Officer nor other eyewitnesses of recovery of Hansiya had any enmity with the appellant. Their evidences were rightly found believable by the trial court.
12. Though there is no eye-witness of the incident in question but the circumstantial evidence available in this matter are not only believable but they are so closely knitted that lead to one and only inference that after taking the Veerpal with him in the field of Bahadur Singh in village Navadia Vamanpuri on 25.9.1991 at about 3:00 p.m., the appellant Manglee had committed carnal intercourse with him and thereafter deliberately inflicted repeated incised injuries over his body for ensuring his death. The findings of fact reached by learned Sessions Judge in this case are based on proper appreciation of evidences. Learned Sessions Judge had considered defence version and their arguments and thereafter passed the judgment by reasoned and speaking order. The findings of facts reached by trial Court relating to commission of charged offence by appellant Manglee are correct and they are hereby confirmed. Therefore, appeal regarding conviction of appellant Manglee for offences of sections 302 and 377 I.P.C. are hereby confirmed.
13. When charged offence was committed on 25.9.1991; at that time old Juvenile Justice Act was prevalent, in which age of juvenility was 16 years. But during pendency of present appeal, Juvenile Justice (Care and Protection of Children) Act, 2000 came into force, in which any person below the age of 18 years has been treated as juvenile in conflict with law.
14. Section 2(1) of Juvenile Justice (Care and Protection of Children) Act, 2000 provides that juvenile in conflict with law means a juvenile, who is alleged to have committed an offence and has not completed 18 years of age as on the date of commission of such offence. Section 20 of this Act has special provisions in respect of pending cases, which makes it clear that so far definition of juvenile in conflict with law is concerned, this Act shall have retrospective effect from the date of its coming into existence, and any person below the age of 18 years on date of commission of offence in pending criminal trial is entitled to benefit of provisions of this Act.
15. The appellant Manglee had taken plea of juvenility during pendency of present appeal (Jail Appeal No. 8327 of 2007) this Court had passed order dated 23.12.2010 with direction to get the accused appellant medically examined. In that regard, directions were issued by this Court to Sessions Judge, Bareilly for inquiring into the matter and submitting his report regarding alleged juvenility of the appellant Manglee. Learned Sessions Judge, Bareilly had got the appellant Manglee medically examined and thereafter inquired properly the matter and submitted his report dated 26.4.2011, in which he had held that age of accused Manglee was 17 years, 05 months and 19 days on the date of charged offence on 25.9.1991; and then he had declared the appellant Manglee to be juvenile on the date of offence. This finding had become final. So this Court has to extend the appellant benefits available to him under the Juvenile Justice (Care and Protection of Children) Act, 2000.
16. Section-20 aforesaid reads that if the Court finds that juvenile has committed offence, it shall records such finding and instead of passing any sentence in respect of the juvenile, forward the juvenile to the Board, who shall pass order in respect that juvenile in accordance with the provisions of this Act as if it had been satisfied on enquiry on the fact that juvenile has committed the offence. The Juvenile Justice (Care and Protection of Children) Act, 2000 and rules made thereunder provide that a juvenile in conflict with law cannot be detained for more that three years.
17. In present case, appellant Manglee is in jail since the year 1991 and much more time than three years of maximum period of detention of any juvenile has been passed in jail. Therefore, in present matter there is no propriety to send the case again before Juvenile Justice Board for passing order of punishment to appellant Manglee as more than maximum period of punishment of detention has already been inflicted over him. In these circumstances, ends of justice would meet properly when appellant Manglee be released from the jail immediately.
18. So far appeal against conviction for the charge under sections 302 and 377 of IPC is concerned this appeal is dismissed. But, for the reasons discussed above sentences passed by trial Court for those offences are amended as already undergone period for the appellant Manglee who was a juvenile at the time commission of charged offences.
19. Therefore Superintendent Jail is ordered to release accused appellant, Manglee son of Umrai Lal Kurmi from the detention relating to Sessions Trial No. 121 of 1992, State v. Manglee, Case Crime No. 260 of 1991 section 302/201, I.P.C. P.S. Hafizganj, District Bareilly. A copy of this judgment be sent to Sessions Judge, Bareilly for ensuring compliance and submitting report.
