# Bira and others (In Jail) v. State

- **Citation:** (2007) 3 ILRA 906
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2007-08-23
- **Case number:** Criminal Appeal No.1096 of 1982
- **Bench:** K.S. Rakhra, S.K. Jain
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/bira-and-others-in-jail-v-state-41158
- **Pages:** 9

## Headnote

Indian Penal Code- Section 302/149readwith U.P. Children Act-Section 27Sentence of life imprisonment-at the
time of occurrence the appellant was
below than 16 years. No justification of
sending reformatory school considering
the age of appellant at present time as
27 years-Conviction of Appellant-Biraset-a-side-conviction of other appellant
confirmed.

Held: Para 31

In the instant case appellant Bira was a
child within the meaning of section 2(4)
of U.P. Children Act 1951 and now after
27
year
of
the
incident
there
is
absolutely no justification for sending
him to a reformatory school. In similar
situation the Apex court in Jayendra case
(supra) upheld the conviction but the
sentence of imprisonment imposed upon
the accused who was a child on the date
of delinquency but had become major by
the time his appeal, was decided was set
aside we are of the opinion that similar
treatment can be given to the appellant
Bira in this case.
Case law discussed:
AIR 1982 SC 685
AIR1998 (5) SCC697
AIR 1984 SC-237
J.T. 2005 (2) SC - 271

## Text

906 INDIAN LAW REPORTS ALLAHABAD SERIES [2007
APPELLATE JURISDICTION
CRIMINAL SIDE
DATED: ALLAHABAD 23.08.2007

BEFORE
THE HON'BLE K.S. RAKHRA, J.
THE HON'BLE S.K. JAIN, J.

Criminal Appeal No.1096 of 1982

Bira and others
...Appellants (In Jail)
Versus
State

...Respondent

Counsel for the Appellants:
Sri P.N. Misra
Sri Apul Misra
Sri Ram Babu Sharma

Counsel for the Respondents:
Km. Usha Kiran
A.G.A.

Indian Penal Code- Section 302/149readwith U.P. Children Act-Section 27Sentence of life imprisonment-at the
time of occurrence the appellant was
below than 16 years. No justification of
sending reformatory school considering
the age of appellant at present time as
27 years-Conviction of Appellant-Biraset-a-side-conviction of other appellant
confirmed.

Held: Para 31

In the instant case appellant Bira was a
child within the meaning of section 2(4)
of U.P. Children Act 1951 and now after
27
year
of
the
incident
there
is
absolutely no justification for sending
him to a reformatory school. In similar
situation the Apex court in Jayendra case
(supra) upheld the conviction but the
sentence of imprisonment imposed upon
the accused who was a child on the date
of delinquency but had become major by
the time his appeal, was decided was set
aside we are of the opinion that similar
treatment can be given to the appellant
Bira in this case.
Case law discussed:
AIR 1982 SC 685
AIR1998 (5) SCC697
AIR 1984 SC-237
J.T. 2005 (2) SC - 271

(Delivered by Hon'ble K.S. Rakhra, J.)

1. Seven persons aggrieved by the
judgment and order dated 16.4.1982
passed by VII Addl. Sessions Judge,
Aligarh in S.T. No. 277 of 1980 State Vs.
Bira and others, preferred this appeal
under section 374(2) Cr.P.C. Out of seven
appellants three namely Omveer, Ahmad
Saeed and Suresh have expired during
pendency of appeal and their appeal has
abated vide order dated 18.7.2007. The
remaining appellants namely Bira son of
Saudan, Tara son of Munshi. Onkar son
of Hira Singh, all resident of Kidhara
police
station
harduwaganj
district
Aligarh and Mohd.Shafi resident of
Harduwa police station Harduwaganj
have been sentenced by the trial court to
life imprisonment under section 302/149
IPC
and
three
years
rigorous
imprisonment under section 452 IPC. In
addition to this, appellants Bira, Tara and
Onkar have further been sentenced to
seven years rigorous imprisonment under
section 307 read with 149 IPC and one
and half year's rigorous imprisonment
under section 148 IPC. Similarly Mohd.
Shafi has further been sentenced to five
year's
rigorous
imprisonment
under
section 307 read with 149 IPC and one
year's
rigorous
imprisonment
under
section 147 IPC. The case relates to police
station Harduwaganj district Aligarh and
has arisen out of crime case no.79 of
1980.

2. According to the prosecution,
about 5 to 6 years prior to the date of
occurrence, an attempt was made on the
3 All] Bira and others V. State
907
life of Shishupal uncle of Jalsur. In that
connection, appellant Tara, his brother
Mahabir and father Munshi faced trial
under section 307 IPC and were held
guilty and sentenced to four years
rigorous imprisonment by the court of
Session. In appeal, the conviction was
maintained but sentence was reduced to
two years. It is said that since then
Munshi is absconding Appellants Tara,
Bira and Onkar are related to one and
another.

Jalsur had also lodged a report under
section 395 IPC against Tara and Mahabir
but the said case ended in acquittal.

3. The prosecution case is that in the
night of 22/23.3.1980 at about 12'O clock
Jsalsur and his uncle Onkar Singh son of
Sher Singh (the deceased) were sleeping
on the roof of their 'Kotha' in village
Kidhara In front of his house, on the
chabutara, one Jagdish who runs a shop in
outer room of informant's house was
sleeping. This Jagdish heard sound of
movement
of
certain
persons
and
suspecting that some malefactors were
reaching there to commit some crime.
Jagdish raised alarm and took to his heals.
Informant Jalsur and his uncle Onkar also
woke up. While Onkar climbed down
from Kotha towards Chabutara, Jalsur
jumped in the adjoining house of his
uncle Bahori and came out in the open
and set fire to a 'Chappar' in front of his
own house. In the light of fire made on
account of burning of 'Chappar', he saw
appellants Bira, Tara, Onkar and their
companions scuffling with his uncle
Onkar (the deceased). Bira was armed
with gun. Tara and accused Onkar had
country made pistol and their companions
were also armed with lathi, ballam and
fire arm. On the alarm being raised,
villagers started collecting. Some of the
companions of Bira, Tara and Onkar then
climbed up the roof of the house and kept
on firing indiscriminately in order to scare
the witnesses. The informant also saw that
during Bira, Tara and accused Onkar
scuffling with the deceased, a shot was
fired which struck in his chest. Some of
their companions climbed down in to the
house of informant. They tried to break
open the door of the rooms but on their
failure to do so they opened fire on the
doors as well as in side the room through
a ventilator. This firing caused injuries to
informant's
son
Chandra
Bose
and
daughter Tarawati. On seeing pressure
mounting,
the
culprits
pushed
the
deceased into the fire of 'Chappar' which
was set ablaze by the informant. It is
claimed that in this incident some of the
culprits also received injuries of stray
pellets from the shot fired by themselves.
Informants uncle Onkar son of Sher Singh
died on the spot.

4. A report of this incident was
lodged by Jalsur (P.W.2) on the same day
at 2.15 a.m. at the police station which
was three miles away. In the FIR the
above incident was narrated and motive of
the crime was also indicated. It was
further alleged that this crime was
committed in connivance with Rati Ram.
Thus Bira, Tara, Onkar Singh son of Hira
Singh and Rati Ram were named in the
FIR and it was mentioned that they were
accompanied by 8-10 unknown male-
factors whose faces had been seen and
they could be identified by the witnesses.
The incident was witnessed by informant
Jalsur. PW-2 Shishu Pal P.W.3, Bani
Singh P.W.4 besides others.

5.

At
the
police
station
Harduwaganj, the case was registered by
908 INDIAN LAW REPORTS ALLAHABAD SERIES [2007
constable clerk Karan Singh, P.W.9. He
prepared chik report and the investigation
of the crime was taken over by S.O.
N.P.Singh J.W.6. He visited the place of
occurrence and got an inquest of the dead
body conducted through S.I. Sarnam
Singh.
After
due
formalities
and
preparation of relevant documents, dead
body of Onkar son of Sher Singh was sent
for autopsy. The Investigating Officer
recorded the statements of the witnesses,
made spot inspection and at the place of
occurrence, he found seven empty shells
of 12 bore cartridges fired by the culprits.
He took them into possession and
prepared recovery memo. A site plan was
prepared and sample of bloodstained and
plain earth was collected. He also
collected from the place of occurrence
sample of ash of burnt 'Chappar' and
prepared memo thereof.

6. On 25.3.1980 at about 12 O clock
in the noon in village Gur Sikaran, the
Investigating Officer arrested appellant
Mohd. Shafi alongwith Ahmad Saeed,
Suresh etc. in connection with some other
crime.
Since
they
confessed
their
involvement in the present crime also he
made them 'Baparda' on the spot and
brought them to the police station. One of
the culprits Mohd. Shafi was also found
having some fire arm injuries on his body.
He was therefore sent for medical
examination.

7. Dr. D.P. Singh, P.W.1 of PHC
Harduwaganj had examined the injuries
of Tarawati daughter of Jalsur on
23.3.1980 at 1.15 p.m. and following
injuries were found by him:-
1.
Lacerated circular pellet wound 1/8"
x 1/8" x muscle deep on the anterior
aspect of scalp exactly in the mid line of
head.
The injuries, in the opinion of the
doctor, were simple and were caused by
fire arm and it was half day old.

Similarly
Chandra
Bose
was
examined by this doctor on 23.3.1980 at
1.20 p.m. and the following injuries were
found on him:-
1.
 Lacerated circular wound 1/8" x
1/8" x muscle deep (In the right side
of face, 1 1⁄2" in front of the lower
angle of right mandible.
2.
 Lacerated circular wound 1/8" x
1/8" x muscle deep on the right side
of scalp, 4 1⁄2", above the base of
right ear and 1 1⁄2" away from mid
line.
3.
 Lacerated circular wound 1/8" x
1/8" x muscle deep on the left side of
scalp 1⁄2" away from mid line and 2
1⁄2" above the left eye brow.
4.
 Lacerated circular wound 1/8" x
1/8" x muscle deep on the left side of
scalp 1" behind the injury no.3.
All the injuries were simple in nature
and were caused by fire arm and their
duration was about half day old.

Similarly the same doctor examined
the injuries of Mohd. Shafi on 26.3.1980
at 11.15 a.m. and the following injuries
were found on his person:-

1.
Circular wound 1/8" x 1/8" x muscle
deep on the front aspect of right forearm
4" below the level of right elbow joint.
2.
Multiple circular wound 1/8" x 1/8"
x muscle deep on the front and lateral
aspect of right upper arm 12 in numbers
in an area 8" x 5" between the shoulder
and elbow joint.
3.
 Three circular wounds 1/8" x 1/8" x
muscle deep each in an area of 3 1⁄2" x 2"
on the top of the right shoulder joint.
3 All] Bira and others V. State
909
4.
 Multiple circular wounds 1/8" x 1/8"
x muscle deep, 5 in numbers.
extending in a linear fashion starting from
3 1⁄2" above the right nipple to the lower
part of 9th rib at a place 6 1⁄2" away from
mid line of back.

In the opinion of the doctor, all the
injuries were simple and were caused by
fire arm. Duration of these injuries was
found to be 3 1⁄2", days which is
corresponding to the date of incident.

The post mortem examination of the
dead body of Onkar Singh son of Sher
Singh was conducted by Dr. Pradeep
Kumar, P.W.7 on 23.3.1980 at about 5.15
a.m. Following ante mortem injuries were
found on his person:

1.
 Gun shot wound of entry on left
nipple 1" x 1" x chest cavity deep,
margins inverted, blackening and tatooing
present around the wound, part of lung
coming out of the wound.
2. Abrasion 3" x 1" on the top of left
shoulder.
3. Abrasion 1" x 1⁄2" on the right elbow.
4. Abrasion 2" x 1" on the right iliac
spine region.
5. Abrasion 1 1⁄2" x 1⁄2" on left iliac
spine region.
6. Abrasion 3" x 1" x on upper part of
right leg.
7. Abrasion 1⁄2" x 1⁄2" on middle part of
left leg.
8. Abrasion 2" x 1" on the right side of
back.
9. Superficial burn on left side of chest
and abdomens.

8. On the internal examination, 3rd,
4th,5th,6th,7th, ribs on the left side were
found fractured. In the right lung 800 ml.
of dark blood and 12 pellets were
recovered. Left lung was lacerated and 8
pieces of wadding were recovered. In
large intestine gases and faecal matters
were found. In the opinion of the doctor,
death had occurred due to shock and
haemorrhage due to ante mortem injuries
and duration of death was 3/4 day to one
day.

9. Four persons namely Omvir,
Ahmad Saeed, Mohd. Shafi and Suresh
who were arrested by the police on
25.3.1980 in connection with a crime u/s
307 IPC and confessed in the present
crime, were subjected to test identification
on 17.5.1980. The test identification was
conducted by P.W.8 Fasiuddin. In the test
identification informant Jalsur identified
all the above four persons without
committing any mistake. Similarly Bani
Singh P.W.4 identified them without
committing any mistake. Three other
witnesses namely Roshan Singh. Shishu
pal and Hukum Singh also participated in
the test identification of the culprits. Out
of them Roshan Singh rightly identified
Omvir and Suresh and committed two
mistakes,
Sishupal
rightly
identified
Omvir and Mohd. Shafi and committed
one mistake. Hukum Singh could not
identify any of the aforesaid four
persons.Thus against appellant Mohd.
Shafi the Investigating Officer found two
good identifying witnesses besides two
partly good witnesses.

10. On the basis of above evidence,
S.O. N.P. Singh P.W.6 submitted charge
sheet against Bira, Tara and Onkar
whereas against Mohd. Safi and the
deceased appellants, charge sheet was
submitted by next officer S.I. Kusum
Lata.
910 INDIAN LAW REPORTS ALLAHABAD SERIES [2007
11. The defence taken by Bira, Tara
and Onkar was that they had been falsely
implicated by informant on account of
enmity whereas the stand taken by
Mohd.Shafi was that he has been falsely
implicated by the police on account of
enmity with him.

12. In order to bring home the
charge, the prosecution examined 11
witnesses in all. Out of them Jalsur,
P.W.2, Shishupal P.W.3 and Bani Singh
P.W.4 are the alleged eye witnesses.
Jalsur is the first informant while
Shishupal is his real uncle and witness
Bani Singh is his 'Khandani' uncle. All
these witnesses had tried to support the
prosecution version. Jalsur PW-2 narrated
the entire Incident as mentioned in the
FIR and claimed that he had seen Bira,
Tara
and
Onkar
alognwith
his
companions whom he did not recognise
scuffling with the deceased Onkar son of
Sher Singh who was also fired at on
account of which he died on the spot. He
stated that he had set fire to 'Chhappar' in
front of his house, which made sufficient
light. In the light of 'Chappar' fire he and
the witnesses had identified Bira, Tara
and Onkar. He also deposed before the
trial court that some of the culprits
climbed on the roof and opened fire on
them while their companions jumped in
side the house and opened fire with a
view to get the doors of the house opened
and they also made firing in the room
through ventilator causing injuries to
Tarawati and Chandra Bose. Before the
trial court this witness also identified the
appellant Mohd. Shafi as one of the
culprits and stated that he had seen him in
the incident and identified him at the time
of test identification parade. He denied
the fact that he knew Mohd.Shafi from
before. He also clearly denied the fact that
the incident was an abortive attempt of
dacoity and clearly stated that neither any
property was looted from his house nor
culprits were looking for the property.

13. The statement of Jalsur P.W.2 is
duly corroborated by the statement of
P.W.4 Bani Singh whose house was at a
space of three houses from the house of
the informant. His presence on the spot is
very natural and probable. There is no
doubt that the incident had taken place in
the night where firing was resorted to and
Onkar son of Sher Singh was fired at
whereas Chandra Bose and Tarawati
received injuries. In such circumstance,
gathering of villagers near the place of
occurrence is very natural and probable.
The Investigating Officer had also found
ash of burnt 'Chappar' on the spot. There
was sufficient light and the witnesses had
opportunity to see the miscreants. He also
stated unequivocally that amongst the
miscreants he had identified Bira, Tara
and Onkar who were duly armed with fire
arm. He clearly stated that this incident
was committed not with a view to make
any loot but was intended to commit
murder.
He
had
also
identified
Mohd.Shafi and others in the court as
persons who had participated in the crime.
Nothing significant could be taken out
from
his
testimony
in
the
cross
examination by the defence.

14. Similarly the statements of
above
two
witnesses
have
been
corroborated by the statement of P.W.3
Shishupal whose house is at the distance
of four houses from the house of the
informant. This witness is blind from one
eye but can fully and properly see from
second eye. He also reached the place of
occurrence on hearing the alarm and had
seen the same from near Chabutra of
3 All] Bira and others V. State
911
Informant's house. He named Bira, Tara
and Onkar who were armed with fire arm
and stated that they were accompanied by
their companions armed with lathi,
Ballam and fire arm. He denied the
suggestion that it was an incident of
dacoity. He confirmed the fact that Onkar
son of Sher Singh was done to death by
the miscreants who were scuffling with
him and also opened fire. This witness is
real uncle of informant but the defence
could not take out any significant
statement from him which may render his
testimony doubtful.

15. Testimony of these witnesses
gets corroboration from the statement of
P.W.1 Dr.D.P.Singh who had examined
injuries of Chandra Bose and Tarawati on
23.3.1980
at
PHC
Harduwaganj.
Subsequently on 26.3.1980 the witness
had also examined Mohd. Shafi on whose
person, three and half days old fire arm
injuries, similar in nature as were found
on the person of Chandra Bose and
Tarawati, were found.

16. Statement of Dr. Pradeep Kumar
P.W.6 who had conducted post mortem
examination on the body of Onkar son of
Sher Singh further corroborates, the above
evidence. He had found a gun shot injury
on the chest of the deceased with
blackening and tattooing around it.
Significantly there was also superficial
burn injury on left Side of chest and
abdomen. This fully corroborates the FIR
that miscreants before leaving the place of
occurrence had thrown Onkar son of Sher
Singh in the fire of 'Chappar'.

17. Rest of the witnesses examined
by the prosecution are P.W. 5 Bhagat
Singh constable who had carried the dead
body for autopsy. P.W.6 SI N.P. Singh,
Investigating Officer, P.W.8 Sri Fasiuddin
who had conducted test identification
parade on 17.5.1980, P.W. 9 constable
Karan Singh who had registered the case
at the police station and deposed that
Mohd. Shafi and other accused arrested
on 25.3.1980 were kept Baparda in the
police station. P.W 10 Kaptan Singh and
P.W.11 Hukum Singh are also formal
witnesses who had stated that Mohf.Shafi
and others arrested on 25.3.1980 were
kept and moved Baparda from one
destination to the other.

18. N.P. Singh P.W.6 who is the
investigating officer has stated that on
25.3.1980 he had apprehended Mohd.
Shafi and three others in the case u/s 307
IPC and they confessed their involvement
in the present crime and therefore they
were kept Baparda. He also stated that he
found from the place of occurrence seven
empty shells of cartridges fired in the
incident and collected ash of 'Chappar'
which had been set to fire by the
informant. He also stated that village
Harduwa to which Mohd. Shafi belonged
is four kilo meters away from village
Kidhara. In his statement also the defence
could not elicit out any thing material Sri
Fasiuddin
P.W.8
is
the
Executive
Magistrate.
He
proved
the
test
identification memo prepared by him.

19. On the basis of the aforesaid
evidence the trial court found the charges
proved and convicted the appellants in the
manner stated in the beginning of the
judgment. No oral evidence was led by
the defence.

20. We have heard Sri P.N. Misra,
Senior Advocate assisted by Sri Apul
Misra and Sri Ram Babu Sharma,
advocates appearing on behalf of the
912 INDIAN LAW REPORTS ALLAHABAD SERIES [2007
appellants, the State has been represented
by Ms. Usha Kiran, AGA. We have gone
through the entire evidence on record.

21. The first argument raised by Sri
Mishra was that it is an incident of
abortive attempt of dacoity which has
been given colour of murder and the
persons inimical to the first informant
have been implicated in this case. After
carefully examining the entire evidence in
the light of argument we find that there is
absolutely no evidence to suggest that the
miscreants had any intention to commit
dacoity. Not a single article was stolen
from the house of the informant. To the
contrary it has come in the testimony of
witnesses that miscreants were declaring
that no one would be left alive and were
exhorting one another to eliminate all. Sri
Mishra drew attention of the court to a
note recorded by P.W.8 Sri Fasiuddin in
the identification memo wherein with
reference to informant Jalsur it had been
recorded that he stated to have gone for
identifying
the
persons
who
had
committed dacolty and murder. Jalsur has
disclaimed this statement. The remaining
four identifying witnesses had clearly
stated before the magistrate that they had
come to identify the persons who had
killed Onkar son of Sher Singh. We are
therefore of the opinion that endorsement
made by Sri Fasiuddin P.W.8 with regard
to Jalsur has no significance and it can not
be inferred that miscreants intended to
commit
dacoity.
To
the,
contrary
circumstances showed the intention of
miscreants to eliminate their target.

22. Admittedly there was enmity
between the two sides and the prosecution
evidence has clearly established motive
for the commission of the crime in which
Tara, Mahabir and their father Munshi
had been convicted u/s 307 IPC for
making an attempt on the life of P.W.3
Shishupal. Their appeal had also been
dismissed by the High Court although the
sentence was reduced to two years. This
was immediate motive while evidence
indicates that there was other incident also
providing motive for commission of
crime. Jalsur stated that Onkar, Bira and
Tara are 'Khandani' of each other and in
fact he claimed that even he himself
belonged to their khandan From the
evidence on record we find it established
that there was sufficient.motive for the
commission of crime.

23. FIR was promptly lodged within
three hours. Bira, Tara and Onkar were
named accused. FIR does not give any
indication
that
miscreants
had
any
intention to commit any dacoity. Thus
prompt FIR containing the names of Bira,
Tara and Onkar with specific role
attributed to them is strong piece of
corroborative evidence against them.

24. As mentioned earlier nothing
could be elicited from the statements of
the eye witnesses by the defence which
could render their testimony unreliable.
Bira, Tara and Onkar were named by all
the witnesses. We therefore find that their
conviction has been rightly recorded by
the trial court.

25. So far as Mohd. Shafi is
concerned, the evidence on record clearly
shows that he was identified in the court
as well as in the test identification parade
by two good witnesses i.e. Bani Singh and
Jalsur.
These
witnesses
had
not
committed any mistake. Identification
parade was held after 51 days. There was
therefore no undue delay in conducting
the same. There is nothing on record to
3 All] Bira and others V. State
913
show that Bani Singh and Jalsur had
known Mohd.Shafi from before or had
any occasion to know him. Their
testimony that they had seen them for the
first time in the course of incident and
second time in the jail can not be doubted.
In addition to this involvement of
Mohd.Shafi in the crime is also indicated
from the circumstances that when he was
apprehended by the police on 25.3.1980
he was carrying fire arm injuries on his
person.
He
was
sent
for
medical
examination at PHC Harduwaganj where
Dr. D.P. Singh P.W.l on 26.3.1980 found
several injuries of the pellets of gun fire
which are mentioned in Ex. ka-8 referred
to earlier in this judgment. Significantly
the circular fire arm wounds found on the
person of Mohd.Shafi were similar in
nature as were found on the persons of
Tarawati and Chandra Bose who had been
examined on 23.3.1980. The duration of
injuries found on Mohd. Shafi also
conformed to the time of incident. There
is no credible evidence to show that he
was shown to the witnesses before being
subjected
to
test identification. We
therefore hold that appellant Mohd. Shafi
was also involved in this incident and the
trial court rightly convicted him.

26. Sri Mishra then pointed out that
appellant no.1 Bira was a minor at the
time of alleged incident and in accordance
with provision of U.P. Children Act of
1951 he can not be sentenced to
imprisonment for the offence committed
during his childhood. It has been argued
that since now Bira has become major, the
only course open to the court while
maintaining conviction would be to set
aside the sentence passed on him. In
support of his argument, learned counsel
has placed reliance on the case of
Jayendra and another Vs. State of
Uttar Pradesh reported in AIR 1982
page 685.

27. A perusal on record would show
that appellate Bira had given his age in his
statement under section 313 Cr.P.C. as 15
1⁄2 years on 19.3.1982. The observation of
trial Judge available as an endorsement
made on the statement given by the
accused was that accused Bira was above
17 years of age. No other material has
been brought to our notice giving any
indication of the age of accused Bira. In
view of this even if we rely on the
observation made by the Sessions Judge.
Bira was less than 18 years on 19.3.1982.
The present incident took place on
23.3.1980. Therefore on the date of
incident he was less than 16 years of age.

28. Consistent view of Apex court
expressed in the cases of Santenu Mitra
Vs. State of West Bengal, 1998(5) SCC
697, Bhola Bhagat Vs. State of Bihar,
AIR 1998(1) SC 236 and Gopi Nath
Ghosh Vs. State of West Bengal, AIR
1984 SC 237 is that hyper technical
approach should not be adopted while
considering the claim of accused that he
is juvenile. The U.P. Children Act was a
beneficial legislation and therefore liberal
interpretation should be given to its
provisions. The provisions of the Act are
however mandatory.

29. Under section 2 (4) of U.P.
Children Act 1951 a child has been
defined as a person under the age of 16
years. The Apex court has already set at
rest the controversy relating to relevant
date for the purpose of considering the
liability in the case of commission of
offence. In Pratap Singh Vs. State of
Jharkhand, Judgment Today, 2005(2)
SC 271 it has been held that for the
914 INDIAN LAW REPORTS ALLAHABAD SERIES [2007
purpose of granting benefit to a juvenile
accused,
the
relevant
date
for
determination of age is the date of
delinquency and not the date of trial or
hearing of appeal.

30. Section 27 of U.P. Children Act
provides that notwithstanding anything to
the contrary in any law, no court shall
sentence a child to imprisonment for life
or to any term of imprisonment. Section 2
provides, in so far as it is material, that if
a child. is found to have committed an
offence punishable with imprisonment,
the court may order him to be sent to an
approved school for such period of stay as
will not exceed the attainment by the
child of the age of 18 years.

31. In the instant case appellant Bira
was a child within the meaning of section
2(4) of U.P. Children Act 1951 and now
after 27 year of the incident there is
absolutely no justification for sending him
to a reformatory school. In similar
situation the Apex court in Jayendra case
(supra) upheld the conviction but the
sentence of imprisonment imposed upon
the accused who was a child on the date
of delinquency but had become major by
the time his appeal, was decided was set
aside we are of the opinion that similar
treatment can be given to the appellant
Bira in this case.

32. In view of the observations made
above, the conviction of appellants Bira,
Tara, Onkar and Mohd.Shafi as recorded
by the trial of court is confirmed. The
sentences passed on them except on Bira
are also confirmed. With regard to Bira
appellant, in view of discussion made
above, the sentence of imprisonment
passed
on
him
is
quashed
while
conviction remains intact. Bira's appeal to
that extent is allowed and appeal of other
appellants is dismissed. The appellants are
on bail. Bail of Tara, Onkar and Mohd.
Shafi is cancelled. They shall be taken
into custody to serve out the sentence.
Bira need not surrender. Let a copy of this
judgment be certified to the trial court for
necessary action.
---------
APPELLATE JURISDICTION
CRIMINAL SIDE
DATED: ALLAHABAD 29.11.2007

BEFORE
THE HON'BLE AMAR SARAN, J.

Misc. Application for suspension of
conviction No. 192600
IN
Criminal Appeal No. 1365 of 2006

Daya Shanker Rai & another ...Appellants
Versus
State of U.P.

...Opposite party

Counsel for the Appellants:
Sri Shishi Tandon
Sri G.S. Chaturvedi
Sri Dharmendra Singhal
Sri Santosh Dwivedi

Counsel for the Opposite Party:
Sri Shailendra Sharma
Sri Kamal Krishna
A.G.A.

Code of Criminal Procedure-Section 389
(1)-Suspension
of
Conviction-and
suspension of sentence-difference and
Scope
of
interference
explainedconviction
of
7
years
rigorous
imprisonment for offence under Section
307 I.P.C.-applicant was working as
clerk in school-only ground disclosed-if
no stay order passed-he shall be ousted
from service-whether amounts to moral
turpitude? Held-such question is to be
decided only by disciplinary authority-