# Dodraj & Ors v. State of U.P

- **Citation:** (2024) 8 ILRA 872
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2024-08-14
- **Case number:** Criminal Appeal No. 2582 of 1983
- **Bench:** Siddhartha Varma, Ram Manohar Narayan Mishra
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/dodraj-ors-v-state-of-u-p-52481
- **Pages:** 14

## Headnote

Criminal Law - Indian Penal Code, 1860 -
302/149, 147, 148 - Code of Criminal
Procedure, 1973 - Section 313 - Juvenile
Justice (Care and Protection of Children)
Act, 2000 - Sections 7(A), 15(1)(d),
15(1)(g), 16 - Appeal against conviction -
Imprisonment for life - A dacoity had
taken place at house of accused Dodraj,
and deceased Ram Prakash, brother of
informant was named an accused and
later acquitted of charge - On 05.07.1982,
the deceased, informant (PW2), and Brij
Lal (PW3) were going to town to get
wheat grinded and to purchase other
articles by a bullock cart - At 07:30 am,
the appellants met them on way , armed
with lathis and kanta - They abused
deceased and attacked him - FIR was
lodged by PW2 against all the accused - In
the meantime, all accused have died,
except present appellant no. 2 - Held,
place of occurrence has been proved by
evidence of witnesses of fact - Site Plan is
proved
by
evidence
of
Investigating
Officer (PW7) - Appellant has not taken
any specific case in defence nor produce
any defence evidence - Accused failed to
prove contradiction in evidence of eye
witnesses PW1, PW2, PW3, PW4, PW6 -
PW1 proved injury report of witness PW3
- PW5, author of postmortem report
proved that injuries found on deceased
were sufficient to cause death - During
the
pendency
of
appeal,
a
plea
of
juvenality was taken by appellant, learned
Sessions Judge observed that at the time
of
incident
appellant
was
juvenile,
sentence awarded to appellant for proved
charges can't be sustained - No infirmity
in impugned order, directions accordingly.
(Para 6, 20, 26, 28, 29)

Appeal is disposed of. (E-13)

List of Cases cited:

Vinod Katara Vs St. of U.P. 2022 LiveLaw (SC)
757

## Text

_Characters 0–39,977 of 46,278. This is a partial read: ask again with offset=39977 for what follows._

872 INDIAN LAW REPORTS ALLAHABAD SERIES
Court finds that the appeal lacks merit. The
trial court's findings were based on a proper
appreciation of the evidence, and there
were no legal or factual errors that warrant
interference by this Court. The appeal is
liable to be dismissed.

32.

Accordingly,
the
Court
upholds the conviction and sentence passed
by the trial court and the appeal is
dismissed and the judgment of the trial
court is affirmed.
----------
(2024) 8 ILRA 872
APPELLATE JURISDICTION
CRIMINAL SIDE
DATED: ALLAHABAD 14.08.2024

BEFORE

THE HON'BLE SIDDHARTHA VARMA, J.
THE HON'BLE RAM MANOHAR NARAYAN
MISHRA, J.

Criminal Appeal No. 2582 of 1983

Dodraj & Ors. ...Appellants
Versus
State of U.P. ...Respondent

Counsel for the Appellants:
P.N. Misra, Raghuvansh Misra, Rahul Misra

Counsel for the Respondent:
A.G.A.

Criminal Law - Indian Penal Code, 1860 -
302/149, 147, 148 - Code of Criminal
Procedure, 1973 - Section 313 - Juvenile
Justice (Care and Protection of Children)
Act, 2000 - Sections 7(A), 15(1)(d),
15(1)(g), 16 - Appeal against conviction -
Imprisonment for life - A dacoity had
taken place at house of accused Dodraj,
and deceased Ram Prakash, brother of
informant was named an accused and
later acquitted of charge - On 05.07.1982,
the deceased, informant (PW2), and Brij
Lal (PW3) were going to town to get
wheat grinded and to purchase other
articles by a bullock cart - At 07:30 am,
the appellants met them on way , armed
with lathis and kanta - They abused
deceased and attacked him - FIR was
lodged by PW2 against all the accused - In
the meantime, all accused have died,
except present appellant no. 2 - Held,
place of occurrence has been proved by
evidence of witnesses of fact - Site Plan is
proved
by
evidence
of
Investigating
Officer (PW7) - Appellant has not taken
any specific case in defence nor produce
any defence evidence - Accused failed to
prove contradiction in evidence of eye
witnesses PW1, PW2, PW3, PW4, PW6 -
PW1 proved injury report of witness PW3
- PW5, author of postmortem report
proved that injuries found on deceased
were sufficient to cause death - During
the
pendency
of
appeal,
a
plea
of
juvenality was taken by appellant, learned
Sessions Judge observed that at the time
of
incident
appellant
was
juvenile,
sentence awarded to appellant for proved
charges can't be sustained - No infirmity
in impugned order, directions accordingly.
(Para 6, 20, 26, 28, 29)

Appeal is disposed of. (E-13)

List of Cases cited:

Vinod Katara Vs St. of U.P. 2022 LiveLaw (SC)
757

(Delivered by Hon'ble Ram Manohar
Narayan Mishra, J.)

1. Instant Criminal Appeal has
been preferred under Section 374 Cr.P.C.
against the judgment and order dated
22.10.1983 in St. No. 438 of 1982 State Vs.
Dodraj and others, whereby the accused
appellants Shree Ram, Ram Bahadur were
convicted for charge under Section 302/149
IPC and Section 148 IPC, for which they
were sentenced to imprisonment for life
and one year rigorous imprisonment
respectively and the remaining five accused
persons Dodraj, Ram Swaroop, Neksoo,
8 All. Dodraj & Ors. Vs. State of U.P.
873
Summeri alias Bhadain and Kallan alias
Kalyan were convicted under Sections 147
and 302/149 IPC and each of them have
been sentenced to six months rigorous
imprisonment for charge under Section 147
IPC and life imprisonment for charge under
Section 302/149 IPC. Both the sentences
were directed to run concurrently.

2. The appellants were enlarged on
bail vide order dated 27.10.1983 passed in
instant appeal during the pendency of
appeal. Appellants Dodraj, Ram Swaroop,
Neksoo, Summeri alias Bhadain, Shree
Ram and Kallan alias Kalyan have died
during the pendency of appeal and appeal
has been dismissed for these deceased
appellants as having abated by various
orders passed by this Court in the present
appeal. Thus the appeal at present survives
in respect of appellant Ram Bahadur only,
and it has been argued in respect of
appellant Ram Bahadur by the learned
counsel for the parties.

3. This fact is noticeable that
appellant No.2 Ram Bahadur, the sole
surviving appellant moved an application
before this Court with a prayer to consider
his juvenality at the time of offence, as he
was aged about 17 years at the time of
incident. This Court heard learned counsel
for the parties, on this application filed on
behalf of appellant No.2 Ram Bahadur,
wherein he claimed juvenality, and on
16.02.2022 passed an order to the effect
that
the
application
filed
by
the
applicant/appellant
alongwith
all
the
documents be forwarded to the concerned
session judge, and, in turn, the concerned
sessions judge shall conduct an appropriate
inquiry for determining the age of the
appellant No.2. It is also directed in the
said order the the concerned sessions judge,
after conducting an appropriate inquiry in
accordance with law, shall send his report
before this Court.

4. In compliance of this Court's
order dated 16.02.2022 a report dated
28.09.2022 alongwith lower court record
has been received from District and
Sessions Judge, Budaun, wherein it is
stated that at the time of incident appellant
Ram Bahadur was juvenile. There is
nothing on record which could manifest
that any appeal or revision was filed on
behalf of State or defacto complainant.
Interms this finding of juvenality recorded
by learned Sessions Judge, the appellant
would be treated as juvenile for the
purposes of present criminal appeal.

5. Heard Sri Rahul Mishra, learned
counsel for the appellants and Sri Rahul
Asthana, learned AGA for the State.

6.

The
factual
matrix
of
prosecution case in nutshell are that
informant Ramavtar lodged an FIR by
filing
written
report
bearing
dated
05.07.1982 at P.S. Ujhani, District Budaun,
wherein he stated that there was enmity
between his family members and accused
Dodraj. A dacoity had taken place at the
house of accused Dodraj, and for that
dacoity deceased Ram Prakash who was
brother of the informant was named an
accused and he was challaned, his brother
Ram Prakash acquitted of said charge of
dacoity by court of session on 28.06.1982.
On 05.07.1982 the deceased Ram Prakash,
his brother Ramavtar PW2, and his father
Brij Lal PW3 were going to Ujhani town to
get wheat grinded and to purchase other
articles
for
the
Katha
(a
religious
ceremony) by a bullock cart. At about
07:30 am they reached near railway line
crossing which was very close to their
874 INDIAN LAW REPORTS ALLAHABAD SERIES
village, the accused Dodraj, Ram Swaroop,
Neksoo, Summeri alias Bhadain, Ram
Bahadur and Kallan alias Kalyan, met them
on way who has come from other side and
were armed with lathis and kanta. They
stated that they abused Ram Prakash and
they would kill him on that day. Ram
Prakash ran towards fields to save him, but
the accused persons chased him and
attacked him in the field of Preetam by
lathi and kanta (an incised weapon). The
informant and his father raised alarm,
whereupon passersby Ramphal, Anekpal,
Munshi and Netram reached and cried what
they were doing. The informant and his
father moved forward to save Ram Prakash.
The accused persons assaulted him and his
father by lathi. The injured Ram Prakash
fell down in the field and when the
witnesses challenged the accused persons
then they escaped towards railway-line.
The occurrence was witnessed by the
informant, his father and other witnesses.
The informant and witnesses laid the
injured in a tanga (horse cart) and took him
at police station. The FIR was lodged under
Section 147 IPC at P.S. concerned vide
Crime No.289 of 1982, on same day i.e.
05.07.1982 at 11:30 am, in which all the
seven accused are named.

7. The written report Ext. Ka-1
was scribed by Smt. Gayatri Devi and filed
by the informant at police station under
Sections 147, 148, 149, 307 of IPC.

8. Injured Ram Prakash died on
account of worsening condition of Ram
Prakash who had been brought to District
Hospital Budaun where he died. A death
information was sent to police station
Ujhanai and the case converted from Section
307 IPC to Section 302 IPC, on the basis of
death information memo received from
district hospital. The inquest on body of the
deceased was conducted on 05.07.1982 at
13:10 hours.

9. S.I. Sri V.S. Yadav of Police
Station Kotwali Budaun was deputed to hold
inquest on the dead body. He went to the
district hospital Budaun and held an inquest
on the dead body on 05.07.1982 at about
noon time, in presence of the witnesses. He
prepared inquest report Ext. Ka-7, Naksha
Nash Ext. Ka-8, Chalan Nash Ext. Ka-9,
letter to R.I. Ext. Ka-10, letter to C.M.O. Ext.
Ka-11 and another letter requesting for
postmortem examination on dead body of
Ram Prakash. S.I. Sri V.S. Yadav also
prepared sample seal and send the dead body
for postmortem examination in sealed cover.
For postmortem examination two constables
Ramesh Chandra and Raghuveer Sahai of
Police Station Kotwali, they were instructed
to take the dead body to mortuary for
postmortem examination.

10. Postmortem on the dead body
was conducted by Dr. S.R. Gupta, PW5 on
05.07.1982 at 04:55 pm. The Medical Officer
found the following ante-mortem injuries on
the dead body:-

 1. Incised wound 10 cm x 2 cm x
bone deep on right side of dead, 4 cm behind
the right ear, placed vertically above downward. Margins clear-cut.

 2. Incised wound 4 cm x 1.25 cm x
bone deep one cut on the central post of head,
2 cm outer to injury No.1.

 3. Incised wound 6.5 cm x 1 cm x
bone deep, part of scalp over head, muscle
cut on left side of head. 6 cm lateral to
injury No.3.

 4. Multiple contusions (abraded)
11 cm x 1 cm on the right side of neck, just
8 All. Dodraj & Ors. Vs. State of U.P.
875
below the mandible, 4 cm below the right
ear standing up to back and frond.

 5. Contusion 1 cm x 1 cm on the
top of right shoulder.

 6. Contusion multiple in an area
of 19 cm x 4 cm on the ulnar border of left
fore-arm, close to lateral aspect, 4 cm
below the elbow.

 7. Contusion 7 cm x 1.5 cm on
the lateral border of lower third of left arm.

 8. Contusion 7 cm x 2 cm on the
lateral border of elbow.

 9. Incised would 1 cm x 0.5 cm
on the Palmer aspect.

 10. Contusion 6 cm x 2 cm on the
right calf.

 11. Contusion 6 cm x 2 cm on the
border of right forearm lower part with
fracture of radius.

11. Besides these injuries, on
internal examination the Medical Officer
found clotted blood present below injuries
Nos. 1 and 2. Right side temporal, parietal
and occipital bones were fractured. Brain
and membranes were cut and clotted blood
was present there. Both chambers of the
heart were empty. Two onces digested
unidentified food material was found in
stomach. According to the medical officer,
the death was caused due to shock and
hamorrhage as a result of ante-mortem
injuries at about 11:30 am vide police
papers. Dr. S.R. Gupta also prepared the
postmortem examination report Ext. Ka-3.

12. Investigation of this case was
conducted by S.I. S.S. Sharma, PW7. The
case was registered in his presence at police
station Ujhani. He recorded the statement
of H.M. Rameshwar Dayal, who had
written the FIR and the complainant Ram
Avtar at the police station. Then he
proceeded to the place of occurrence where
he recorded the statements of the witnesses
Munshi Shah, Anekpal and others. He
made a local inspection and prepared site
plan Ext. Ka-5. From the place of
occurrence he obtained blood stained and
simple earth and prepared its memo Ext.
Ka-6. He arrested the accused persons
Neksoo,
Summeri
and
Kallan
on
20.07.1982 and the remaining accused
persons surrendered thereafter in the court.
The I.O. submitted charge-sheet against
those accused persons on 18.07.1982,
20.07.1982.

13. The case of all the seven
accused
persons
named
above
was
committed to court for session by Sri M.K.
Bansal, Judicial Magistrate-II Budaun vide
order dated 14.09.1982 for trial for charge
under Sections 147, 148, 149 and 302 IPC.
The charges against the accused persons
were
framed
by
learned
Additional
Sessions Judge on 27.01.1983.

14. The first charge against them
recites that on or about 5th day of July,
1982 at about 07:30 am at the field of
Pitambar near railway crossing of village
Ulehtapur, Police Station Ujhani, District
Budaun, these accused persons were
members of an unlawful assembly, the
common object of which was to commit the
murder of Ram Prakash and at that time the
accused persons were armed with deadly
weapons namely lathis and kanta and
committed
riot,
and
thereby
they
committed an offence punishable under
Section 148 IPC. The second charge against
them narrates that on the aforesaid date
876 INDIAN LAW REPORTS ALLAHABAD SERIES
time and place in prosecution of the said
common object of such unlawful assembly,
the accused persons committed the murder
of Ram Prakash having intentionally
caused his death and thereby committed
ana offence punishable under Section 302
read with section 149 IPC. The accused
persons pleaded not guilty and claimed to
be tried.

15. In order to prove its case the
prosecution examined Dr. M.L. Verma,
P.W.1 who deposed about the injuries of
Ram Autar and Brijlal, PW2 and 3.
Prosecution also examined Ram Autar
PW2, his father Brijlal PW3, Ramphal
PW4, and Nek Ram PW6. They are the eye
witnesses and deposed about the incident.
Prosecution also examined Dr. S.R. Gupta
PW5 who had held an autopsy on the dead
body. He has deposed abut the ante-mortem
injuries and internal injuries found on the
dead body and proved the postmortem
examination report. Then the prosecution
examined SI S.S. Sharma PW7 who had
conducted
the
investigation.
He
has
deposed about the investigation and proved
the papers connected with the dead body
prepared by the SI V.S. Yadav of Police
Station Kotwali. He has also proved the
FIR prepared by constable Rameshwar
Dayal of police station Ujhani. Prosecution
also filed a judgment in S.T. No.344/80
State Vs. Ram Prakash under Section
395/397 IPC and another judgment in
Criminal Appeal No.135/81 Ext.Kha-14
and Ka15.

16. In defence the accused persons
examined Dr. Smt. P.K. Agarwal D.W.1
Medical
Officer
Women's
Hospital,
Budaun. She deposed that the life of the
accused Kallan was admitted in the hospital
at 10:30 am on 05.07.82 and she gave birth
to a dead child at 03:30 pm. Defence also
examined Jigar Shan DW2 a Tanga Driver.
He has deposed that about 1 1⁄4 year ago
before sun set, he had taken Kallan and his
wife in his tanga to the hospital of Jagat
and then to the Women's Hospital at
Budaun where he reached at about 09:00
am. The defence also filed a photo-stat
copy of bed-head ticket Ext. Kha-1. Copy
of judgment Ext. Kha-2, copy of charge
sheet Ext. Kha-3, copy of statement of
Ramphal in consolidation case Ext. Kha-4.
Copy of bail order Ext. Kha-5. One voter
list was was also filed which is not
admissible in evidence because it is not a
certified copy.

17. Learned trial court after
hearing the submissions of learned counsel
for the accused persons and learned counsel
for the State scrutinized the entire evidence
placed by the prosecution in defence on
record and also considered the statement of
the accused persons recorded under Section
313 Cr.P.C. as well as defence evidence
adduced by accused persons. Learned trial
court observed that the FIR appears to be
prompt, there is nothing in the prosecution
evidence to show that FIR was ante-time.
Moreover there is motive for assault. It is
admitted fact that prior to this murder a
dacoity had taken place at the house of
Dodraj accused and in that dacoity
deceased Ram Prakash was prosecuted and
acquitted on 29.06.1982, vide copy of
impugned judgment exhibited as Ext. Ka14.

18. Besides this there were cross
cases under Section 307 IPC between the
parties. Ramavtar has also stated on oath
that Dodhraj was prosecuted for possession
of illicit opium and in that also the accused
Ram Prakash had appeared as a witness
against him. All these litigation would give
sufficient motive to the accused persons to
8 All. Dodraj & Ors. Vs. State of U.P.
877
commit the murder of Ram Prakash. Under
all these facts and circumstances, when the
testimony of the prosecution witnesses is
quite natural, independent and is in perfect
harmony with the medical evidence and
when it does not suffer from any material
discrepancy, embellishment paddingup it
must be believed to prove the guilt of the
accused persons beyond reasonable doubt.
The minor contradictions and inconsistency
do not effect the broad features of the
prosecution story relating to the assault on
the deceased. The accused persons deserves
to be convicted.

19. With the above findings,
learned trial court convicted and sentenced
the accused persons as stated above.

20. Learned counsel appearing for
surviving
appellant
Ram
Bahadur
submitted that motive has been attributed to
appellant Dodraj (since deceased), and the
present appellant has been implicated in the
case only to the fact that he is the son of
Dodraj. In fact, appellants were implicated
in the case due to previous enmity between
deceased and appellants. The injuries of
witnesses Ramavtar and Brijlal are of
superficial
in
nature
and
not
very
significant, which could have suggested
definite presence of the injured witnesses
on the spot. This fact has emerged in
evidence that appellant Neksoo and Dodraj
are real brothers, Ram Swaroop and Kallan
are sons of Neksoo, Ram Bahadur and
Shree Ram are sons of Dodraj and
Summeri alias Bhadain is son of Bodhan
who was real brother of Neksoo and
Dodraj. Therefore, all the family members
of Dodraj are implicated in the case due to
enmity.

21. He further submitted that the
learned trial court failed to appreciate the
defence evidence which includes DW1 Dr.
P.K. Agarwal who deposed that wife of the
accused Kallan was admitted in the hospital
at 10:30 am on 05.07.1982, and she gave
birth to a dead child at 03:30 pm. In this
situation presence of appellant Kallan
(since deceased) on the place of incident at
07:30 am was quite unnatural. Defence also
examined DW2 Jigar Shah tanga driver
who deposed that about 11/4 years ago
before sunset he had taken Kallan and his
wife in his tanga to the hospital of Jagat,
and then to Women's Hospital at Budaun,
where he reached at about 09:00 am. The
defence also filed the photostat copy of Bed
Head Ticket, Ext. Kha-1, copy of judgment
Kha-2, copy of chargesheet Kha-3, copy of
statement of Ramphal in consolidation case
Ext. Kha-4 and copy of bail order Ext.
Kha-5. The testimony of prosecution
witnesses of fact is full of inconsistencies
and contradictions and no weight can be
attached thereon.

22. Learned counsel for the
appellant also submitted that no money was
recovered from the dead body of Ram
Prakash and therefore it should not be
believed that the deceased Ram Prakash ,
his father and brother were going to Ujhani
to purchase essential articles for Katha
ceremony and to get wheat grinded. PW2
Ramphal was cited as a witness in a
criminal complaint by a person against
Dodraj, he is a partisan and interested
witness and can be cited as a professional
witness PW4. No specific role has been
attributed to present appellant in the
offence, and he has been convicted and
sentenced with the aid of Section 149 IPC.

23. Learned trial court has
miserably failed to appreciate the evidence
on record in proper perspective and
committed error of fact and law by
878 INDIAN LAW REPORTS ALLAHABAD SERIES
convicting the surviving appellant with four
accused persons. He lastly submitted that
appellant has been declared juvenile in
conflict of law at the time of offence by
learned session court after due inquiry
instituted under the directions of this Court,
and even if his complicity in the offence is
found to be proved by this Hon'ble Court,
the appellant deserves to be dealt with
under the provisions of Juvenile Justice
(Care and Protection of Children) Act,
2000, and the sentence awarded to the
appellant deserves to be set-aside.

24. Per contra, Learned A.G.A.
vehemently
supported
the
impugned
judgment and order passed by learned trial
court, whereby the appellant and coaccused have been convicted and sentenced
for charge under Section 302/149 IPC and
Section 148/147 I.P.C.

25. There is not infirmity, factual
or legal error in the impugned judgment
passed by trial court. However, learned
A.G.A. did not dispute the contention of
learned counsel for the appellant that he
must be dealtwith under the provisions of
Juvenile Justice (Care and Protection of
Children) Act, 2000 and not under Indian
Penal Code, so far as sentence/final order is
concerned.

26. On reappraisal of evidence
adduced by prosecution, and stand taken by
the four accused persons under Section 313
Cr.P.C., we find that prosecution case in
respect of present appellant has been duly
proved by eyewitness account. PW2
Ramavtar, the informant who has also
proved the written report as Ext. Ka-1. On
the basis of lodging of FIR, place of
occurrence has also been proved by
evidence of witnesses of fact. PW3 Brijlal,
who is also an injured witness. Site Plan
Ext. Ka-5, is duly proved by evidence of
Investigating Officer S.I. S.S. Sharma
(PW7). The appellant Ram Bahadur has not
taken
any
specific
case
in
defence
statement under Section 313 Cr.P.C., nor
produce any defence evidence. He only
stated that the witnesses have deposed
against him due to his father Dodraj. The
accused side has failed to prove illicit any
material contradiction in evidence of eye
witnesses
PW1
M.L.Verma,
PW2
Ramavtar, PW3 Brijlal, PW4 Ramphal,
PW6 Netram. PW1 Dr. M.L.Verma proved
injury report of witness Brijlal Varma
(PW3). FIR in the case has been lodged
within three houses of the incident and on
facts of the case and keeping in view the
enormity of crime, distance of police
station and mode of conveyance no undue
delay is found in lodging of FIR and rather
it is lodged with utmost promptitude which
strengthens its reliability.

27. Learned counsel for the
appellants submits that evidence of injury
reports of PW2 informant Ramavtar as Ext.
Ka-2 and injury report of Brijlal PW-3 as
Ext. Ka-1 and had stated that the injuries
found on person of injured were likely to
be caused on 05.07.1982, at around 07:30
am. That the injuries were found fresh at
the time of examination, which was carried
out on 05.07.1982, as police medico legal
case at around 11:30 am.

28. PW5 Dr. Sita Ram Gupta, is
author of postmortem report of deceased
Ram Prakash, who proved postmortem
report as Ext. Ka-4 by his evidence before
the court. He opined in his sworn testimony
before the court that injuries found on
person of deceased Ram Prakash were
sufficient to cause death. As many as 11
ante-mortem injuries were found on person
of deceased at the time of examination.
8 All. Dodraj & Ors. Vs. State of U.P.
879
Two ounce digested food was found in
stomach, on internal examination right
parietal, temporal and occipital bones were
found to be broken and clotted blood was
noticed
in
subdural
space
super,
subarachnoid space clotted blood was also
found and on other injuries. The deceased
died on 05.07.1982 at 11:50 am in the
hospital. No material contradiction could
be suggested by defence in statements of
witnesses of facts before the court from
their previous statements recorded by the
Investigating Officer, except the fact that
PW2 Ramavtar has stated in general
manner that seven named accused persons
were armed with lathis and kanta. Whereas
in evidence before the court he has
specified that accused Shree Ram and Ram
Bahadur weeded farsa and other accused
persons were armed with lathis. Similar
statement was given by PW3 Brijlal injured
witness and also by PW4 Ramphal. PW6
Netram has also stated that all the seven
accused persons were present before the
court at the time of incident, assaulted the
deceased Ram Prakash by lathis and kanta.
Ram Prakash the witness has stated that
when accused persons surrounded Ram
Prakash who was travelling by a bullock
cart and expressed their intent to kill Ram
Prakash. He got down from the cart and ran
towards the field, but accused persons
surrounded him in the field of Preetam and
attacked him with lathi and kanta, which
caused
him
fatal
injuries.
Witnesses
Ramavtar and Brijlal when rushed to save
Ram Prakash, the accused also assaulted
them by lathi.

29. Thus, we find no infirmity in
approach of trial court in appreciation of
evidence on record and application of law
on the facts of the case. The judgment of
learned trial court is based on strength of
evidence on record and supported by
cogent
reasons
which
requires
no
interference, as far as recording of
conviction of the appellant Ram Bahadur is
concerned. However, this fact is noticeable
that during the pendency of present appeal,
a plea of juvenality was taken on behalf of
appellant Ram Bahadur, and this Court vide
order
dated
16.02.2022
directed
the
concerned Sessions Judge to hold an
inquiry regarding plea of juvenality of
appellant No.2 Ram Bahadur and in
compliance of directions of this Court, the
learned Additional Session Judge held an
inquiry regarding plea of juvenality raised
by appellant No.2 Ram Bahadur, and his
report dated 28.02.2022 stated that at the
time of incident appellant Ram Bahadur
was juvenile. Therefore, in terms of
mandate of Juvenile Justice (Care and
Protection of Children) Act, 1996, Juvenile
Justice (Care and Protection of Children)
Act, 2000 and Juvenile Justice (Care and
Protection of Children) Act, 2015, the
sentence awarded to the appellant for
proved
charges
cannot
be
sustained.
Section 16 of Juvenile Justice (Care and
Protection of Children) Act, 2000 may be
reproduced as under:-

 "16 Order that may not be
passed
against
juvenile.-
(1)Notwithstanding
anything
to
the
contrary contained in any other law for
the time being in force, no juvenile in
conflict with law shall be sentenced to
death or [imprisonment, for any term
which may extend to imprisonment for
life] or committed to prison in default of
payment of fine or in default of furnishing
security:

 Provided that where a juvenile
who has attained the age of sixteen years
has committed an offence and the Board is
satisfied that the offence committed is of so
880 INDIAN LAW REPORTS ALLAHABAD SERIES
serious in nature or that his conduct and
behaviour have been such that it would not
be in his interest or in the interest of other
juvenile in a special home to send him to
such special home and that none of the
other measures provided under this Act is
suitable or sufficient, the Board may order
the juvenile in conflict with law to be kept
in uch place of safety and in such manner
as it thinks fit and shall report the case for
the order of the State Government.

 (2) On receipt of a report from a
Board under sub-section (1), the State
Government may make such arrangement
in respect of the juvenile as it deems proper
and may order such juvenile to be kept
under protective custody at such place and
on such conditions as it thinks fit:

 [Provided that the period of
detention so ordered shall not exceed in
any case the maximum period under
Section 15 of this Act.] ."

30. The Hon'ble Supreme Court in
Vinod Katara Vs. State of U.P. 2022
LiveLaw (SC) 757 observed in paragraph
No.1 of the judgment that personal liberty
of a person is one of the oldest concepts to
be purported by national courts. As long
ago as in 1215, the English Magna Carta
provided that:- "No free man shall be taken
or imprisoned.... but..... by law of the land."

 In writ petition concerned, which
was filed at the instance of a convict
accused undergoing life imprisonment for
the offences of murder, in which he
invoked indulgence of Hon'ble Court under
Article 32 of the Constitution, seeking
appropriate directions to the respondentState of U.P. to verify the exact age of the
convict on the date of commission of the
offence, as it was the case of the convict
that on the date of the commission of the
offence i.e. 10.09.1982 he was a juvenile
aged around 15 years. The Medical Board
subjected the applicant to the Xray's of the
skull
and
sturnum.
Upon
medical
examination of the writ applicant, the
Medical Board gave its report dated
10.12.2021 certifying that on 10.09.1982
i.e. the date of the commission of alleged
offence, the writ applicant could have been
around 15 years of age as on the date of
Medical Examination, the convict was
around 56 years of age.

31. Hon'ble Supreme Court
observed that under the 1986 Act, the age
of juvenality was up to the 16th year.
Section 7(A) of the 2000 Act has inserted
by Act 33 of 2006 w.e.f. 22.08.2006
provided as follows:-

 " ........7A. Procedure to be
followed when claim of juvenility is raised
before any Court.(1) Whenever a claim of
juvenility is raised before any court or a
court is of the opinion that an accused
person was a juvenile on the date of
commission of the offence, the court shall
make an inquiry, take such evidence as may
be necessary (but not an affidavit) so as to
determine the age of such person, and shall
record a finding whether the person is a
juvenile or a child or not, stating his age as
nearly as may be:

 Provided that a claim of juvenility
may be raised before any Court and it shall
be recognised at any stage, even after final
disposal of the case, and such claim shall
be determined in terms of the provisions
contained in this Act and the rules made
thereunder, even if the juvenile has ceased
to be so on or before the date of
commencement of this Act. (2) If the court
finds a person to be a juvenile on the date
8 All. Dodraj & Ors. Vs. State of U.P.
881
of commission of the offence under
subsection(1), it shall forward the juvenile
to the Board for passing appropriate orders
and the sentence, if any, passed by a court
shall be deemed to have no effect."

 The claim of juvenility can thus
be raised before any Court, at any stage,
even after final disposal of the case and if
the Court finds a person to be a juvenile on
the date of commission of the offence, it is
to forward the juvenile to the Board for
passing
appropriate
orders,
and
the
sentence, if any, passed by a Court, shall be
deemed to have no effect. Even though the
offence in this case may have been
committed before the enactment of the Act
of 2000, the petitioner is entitled to the
benefit of juvenility under Section 7A of the
Act of 2000, if on inquiry it is found that he
was less than 18 years of age on the date of
the alleged offence."

32. Hon'ble Court further observed
in above stated judgment as under:-

 20. On and with effect from
15.01.2016, the Juvenile Justice (Care and
Protection of Children) Act, 2015 (for
short, "the 2015 Act") came into force
which repealed the 2000 Act. While the
appeal of the petitioner herein against his
conviction and sentence was pending in the
High Court, the 2000 Act came into force
which repealed the Juvenile Justice Act,
1986. The 2000 Act inter alia raised the
age of juvenility from 16 to 18 years and in
terms of Section 20 of the 2000 Act, the
determination of juvenility was required to
be done in all pending matters in
accordance with Section 2(1) of the 2000
Act.

 21. The effect of Section 20 of the
2000 Act was considered in Pratap Singh v.
State of Jharkhand, (2005) 3 SCC 551, and
it was stated as under:"

 31. Section 20 of the Act as
quoted above deals with the special
provision in respect of pending cases and
begins with a non obstante clause. The
sentence
"notwithstanding
anything
contained in this Act, all proceedings in
respect of a juvenile pending in any court
in any area on the date on which this Act
came into force" has great significance.
The proceedings in respect of a juvenile
pending in any court referred to in Section
20 of the Act are relatable to proceedings
initiated before the 2000 Act came into
force and which are pending when the 2000
Act came into force. The term "any court"
would include even ordinary criminal
courts. If the person was a "juvenile"
under the 1986 Act the proceedings would
not be pending in criminal courts. They
would be pending in criminal courts only if
the boy had crossed 16 years or the girl
had crossed 18 years. This shows that
Section 20 refers to cases where a person
had ceased to be a juvenile under the 1986
Act but had not yet crossed the age of 18
years then the pending case shall continue
in that court as if the 2000 Act has not been
passed and if the court finds that the
juvenile has committed an offence, it shall
record such finding and instead of passing
any sentence in respect of the juvenile,
shall forward the juvenile to the Board
which shall pass orders in respect of that
juvenile."

 22. In Bijender Singh v. State of
Haryana , (2005) 3 SCC 685, the legal
position as regards Section 20 was stated in
following words:"

 8. One of the basic distinctions
between the 1986 Act and the 2000 Act
882 INDIAN LAW REPORTS ALLAHABAD SERIES
relates to the age of males and females.
Under the 1986 Act, a juvenile means a
male juvenile who has not attained the age
of 16 years, and a female juvenile who has
not attained the age of 18 years. In the
2000 Act, the distinction between male and
female juveniles on the basis of age has not
been maintained. The agelimit is 18 years
for both males and females.

 9. A person above 16 years in
terms of the 1986 Act wasnot a juvenile. In
that view of the matter the question whether
a
person
above
16
years
becomes
"juvenile" within the purview of the 2000
Act must be answered having regard to the
object and purport thereof.

 10. In terms of the 1986 Act, a
person who was notjuvenile could be tried
in any court. Section 20 of the 2000 Act
takes care of such a situation stating that
despite the same the trial shall continue in
that court as if that Act has not been passed
and in the event, he is found to be guilty of
commission of an offence, a finding to that
effect shall be recorded in the judgment of
conviction, if any, but instead of passing
any sentence in relation to the juvenile, he
would be forwarded to the Juvenile Justice
Board (in short "the Board") which shall
pass orders in accordance with the
provisions of the Act as if it has been
satisfied on inquiry that a juvenile has
committed the offence. A legal fiction has,
thus, been created in the said provision. A
legal fiction as is well known must be given
its full effect although it has its limitations.
............

 11. .............

 12. Thus, by reason of legal fiction,
a person, althoughnot a juvenile, has to be
treated to be one by the Board for the
purpose of sentencing, which takes care of a
situation that the person although not a
juvenile in terms of the 1986 Act but still
would be treated as such under the 2000 Act
for the said limited purpose."

 23. In Dharambir v. State (NCT of
Delhi), (2010) 5 SCC 344, the determination
of juvenility even after conviction was one of
the issues and it was stated:"

 11. It is plain from the language of
the Explanation to Section 20 that in all
pending cases, which would include not only
trials but even subsequent proceedings by
way of revision or appeal, etc., the
determination of juvenility of a juvenile has to
be in terms of clause (l) of Section 2, even if
the juvenile ceases to be a juvenile on or
before 142001, when the Act of 2000 came
into force, and the provisions of the Act would
apply as if the said provision had been in
force for all purposes and for all material
times
when
the
alleged
offence
was
committed.

 12. Clause (l) of Section 2 of the
Act of 2000 provides that "juvenile in conflict
with law" means a "juvenile" who is alleged
to have committed an offence and has not
completed eighteenth year of age as on the
date of commission of such offence. Section
20 also enables the court to consider and
determine the juvenility of a person even after
conviction by the regular court and also
empowers the court, while maintaining the
conviction, to set aside the sentence imposed
and forward the case to the Juvenile Justice
Board concerned for passing sentence in
accordance with the provisions of the Act of
2000."

 24. Similarly, in Kalu v. State of
Haryana , (2012) 8 SCC 34, this Court
summed up as under:"
8 All. Dodraj & Ors. Vs. State of U.P.
883
 21. Section 20 makes a special
provision in respect of pending cases. It
states
that
notwithstanding
anything
contained
in
the
Juvenile
Act,
all
proceedings in respect of a juvenile
pending in any court in any area on the
date on which the Juvenile Act comes into
force in that area shall be continued in that
court as if the Juvenile Act had not been
passed and if the court finds that the
juvenile has committed an offence, it shall
record such finding and instead of passing
any sentence in respect of the juvenile
forward the juvenile to the Board which
shall pass orders in respect of that juvenile
in accordance with the provisions of the
Juvenile Act as if it had been satisfied on
inquiry under the Juvenile Act that the
juvenile has committed the offence. The
Explanation to Section 20 makes it clear
that in all pending cases, which would
include not only trials but even subsequent
proceedings by way of revision or appeal,
the determination of juvenility of a juvenile
would be in terms of clause (l) of Section 2,
even if the juvenile ceased to be a juvenile
on or before 142001, when the Juvenile Act
came into force, and the provisions of the
Juvenile Act would apply as if the said
provision had been in force for all purposes
and for all material times when the alleged
offence was committed."

 25. It is thus well settled that in
terms of Section 20 of the 2000 Act, in all
cases where the accused was above 16
years but below 18 years of age on the date
of occurrence, the proceedings pending in
the Court would continue and be taken to
the logical end subject to an exception that
upon finding the juvenile to be guilty, the
Court would not pass an order of sentence
against him but the juvenile would be
referred to the Board for appropriate
orders under the 2000 Act.
 26. Thus, in view of the aforesaid
discussion, we now proceed to consider the
matter further keeping in view the 2000
Act.

 "......39.5. The court where the
plea of juvenility is raised for the first time
should always be guided by the objectives
of the 2000 Act and be alive to the position
that the beneficent and salutary provisions
contained in the 2000 Act are not defeated
by the hypertechnical approach and the
persons who are entitled to get benefits of
the 2000 Act get such benefits. The courts
should not be unnecessarily influenced by
any general impression that in schools the
parents/guardians understate the age of
their wards by one or two years for future
benefits or that age determination by
medical examination is not very precise.
The matter should be considered prima
facie on the touchstone of preponderance of
probability.

 39.6. Claim of juvenility lacking
in credibility or frivolous claim of juvenility
or patently absurd or inherently improbable
claim of juvenility must be rejected by the
court at the threshold whenever raised."

33. Now adverting to the facts of
the present case, we have to consider the
nature and scope of the final order which
may be passed in respect of surviving
appellant Ram Bahadur in terms of Section
16 of Juvenile Justice (Care and Protection
of Children) Act, 2000. On perusal of
Section 15(1)(g) and proviso to Section 16,
it is crystal clear that the maximum period
of detention in respect of a juvenile is 3
years as provided in Section 15(1) (g).