# Kadam Singh & Ors v. State of U.P

- **Citation:** (2023) 6 ILRA 734
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2023-05-31
- **Case number:** Criminal Appeal No. 797 of 1982
- **Bench:** Rajendra Kumar-Iv
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/kadam-singh-ors-v-state-of-u-p-50350
- **Pages:** 8

## Headnote

Law
-
appeal
against
conviction - Indian Penal Code, 1860 -
Sections 147, 148, 149, 307 - minor
contradictions are bound to appear in the
statements
of
truthful
witnesses
as
memory sometimes plays false - sense of
observation
differs
from
person
to
person.(Para -19)

(B) Indian Evidence Act,1872 - Section
134 - Court can and may act on the
testimony of a single witness provided
he/she is wholly reliable - evidence has to
be weighed and not counted - Test is
whether evidence has a ring of truth,
cogent,
credible
and
trustworthy
or
otherwise. (Para - 22,23)

(C) Criminal Law - The Code of Criminal
Procedure,
1973
-
Punishment
-
appropriate sentence should be awarded
after giving due consideration to the facts
and circumstances of each case, nature of
offence - manner in which it was executed
or committed - measure of punishment
should be proportionate to gravity of
offence. (Para - 32)
Accused-appellant
(Indra
Bahadur
Singh)
opened fire - with intention to kill - causing
serious fire arm injuries on upper arm- role of
accused-appellant
(Mahabir
Singh)
not
established - active participation not proved
from the evidence - presence on spot tried to be
established - common object / intention of firing
- presence on spot highly doubtful.(Para -27)

HELD:-No
illegality,
irregularity,
legal
or
otherwise, or perversity in the impugned
judgement in convicting the accused-appellant
(Indra Bahadur Singh) but no good ground to
convict the accused-appellant (Mahabir Singh).
Appeal of accused-appellant (Mahabir Singh)
deserves to be allowed while the appeal of
accused-appellant (Indra Bahadur) deserves to
be dismissed. Sentence awarded by trial court
6 All. Kadam Singh & Ors. Vs. State of U.P.
735
reduced
and
modified.
Accused-appellant
entitled to get benefit of Section 428 Cr.P.C.
(Para - 29, 30, 34)

Criminal appeal partly allowed. (E-7)

List of Cases cited:

## Text

734 INDIAN LAW REPORTS ALLAHABAD SERIES
ground or reason for interference in the
conviction and sentence recorded by the
trial Court.

28. Hence, the present appeal
deserves to be dismissed and is dismissed
accordingly.

29.

The
convicts/appellants
Karuna Shankar and Rajkishore are on
bail. They are directed to surrender
before the trial Court within ten days to
serve out the sentence awarded to them.

30. In this case learned trial Court
has not imposed any fine on the
convicts/appellants though the fine is
mandatory under Section 302 of IPC.
Considering the fact that the present
appeal is old enough and pending since
1982, it appears just to impose a
nominal find of Rs.1000/- each in
addition
to
the
life
imprisonment
awarded by the trial Court. With this
addition the impugned judgment and
order is hereby upheld.

31. Office is directed to send a copy
of this order along with the lower Court
record to the trial Court concerned for
necessary information and compliance
forthwith.
----------
(2023) 6 ILRA 734
APPELLATE JURISDICTION
CRIMINAL SIDE
DATED:ALLAHABAD 31.05.2023

BEFORE

THE HON'BLE RAJENDRA KUMAR-IV, J.

Criminal Appeal No. 797 of 1982

Kadam Singh & Ors. ...Appellants
Versus
State of U.P. ...Opposite Party
Counsel for the Appellants:
Sri Umesh Narain Misra, Sri Akhilesh Kumar
Pandey, Sri Sukesh Kumar, Sri U.C. Mishra

Counsel for the Opposite Party:
A.G.A.

(A)
Criminal
Law
-
appeal
against
conviction - Indian Penal Code, 1860 -
Sections 147, 148, 149, 307 - minor
contradictions are bound to appear in the
statements
of
truthful
witnesses
as
memory sometimes plays false - sense of
observation
differs
from
person
to
person.(Para -19)

(B) Indian Evidence Act,1872 - Section
134 - Court can and may act on the
testimony of a single witness provided
he/she is wholly reliable - evidence has to
be weighed and not counted - Test is
whether evidence has a ring of truth,
cogent,
credible
and
trustworthy
or
otherwise. (Para - 22,23)

(C) Criminal Law - The Code of Criminal
Procedure,
1973
-
Punishment
-
appropriate sentence should be awarded
after giving due consideration to the facts
and circumstances of each case, nature of
offence - manner in which it was executed
or committed - measure of punishment
should be proportionate to gravity of
offence. (Para - 32)
Accused-appellant
(Indra
Bahadur
Singh)
opened fire - with intention to kill - causing
serious fire arm injuries on upper arm- role of
accused-appellant
(Mahabir
Singh)
not
established - active participation not proved
from the evidence - presence on spot tried to be
established - common object / intention of firing
- presence on spot highly doubtful.(Para -27)

HELD:-No
illegality,
irregularity,
legal
or
otherwise, or perversity in the impugned
judgement in convicting the accused-appellant
(Indra Bahadur Singh) but no good ground to
convict the accused-appellant (Mahabir Singh).
Appeal of accused-appellant (Mahabir Singh)
deserves to be allowed while the appeal of
accused-appellant (Indra Bahadur) deserves to
be dismissed. Sentence awarded by trial court
6 All. Kadam Singh & Ors. Vs. State of U.P.
735
reduced
and
modified.
Accused-appellant
entitled to get benefit of Section 428 Cr.P.C.
(Para - 29, 30, 34)

Criminal appeal partly allowed. (E-7)

List of Cases cited:

1. Sampath Kumar Vs Inspector of Police,
Krishnagiri, (2012) 4 SCC 124

2. Smt. Shamim Vs St. of (NCT of Delhi), (2018)
10 SCC 509

3. Namdeo Vs St. of Maha., (2007) 14 SCC 150

4. Yakub Ismailbhai Patel Vs St. of Guj. , (2004)
12 SCC 229,

5. St. of Haryana Vs Inder Singh & ors. , (2002)
9 SCC 537

6. Sumer Singh Vs Surajbhan Singh & ors.,
(2014) 7 SCC 323,

7. Sham Sunder Vs Puran, (1990) 4 SCC 731,

8. M.P. Vs Saleem, (2005) 5 SCC 554,

9. Ravji Vs St. of Raj., (1996) 2 SCC 175

(Delivered by Hon'ble Hon'ble Rajendra
Kumar-IV, J.)

1. The present criminal appeal has
been filed by accused-appellants Kadam
Singh, Chhotey Singh, Sirnait Singh,
Bhurey Singh (Now dead), Indra Bahadur
Singh and Mahabir Singh assailing the
impugned judgement and order dated
26.03.1982 passed by Sri K.S. Mishra, VI
Additional District & Sessions Judge,
Etawah in S.T. No.251 of 1979, under
Sections 147, 148, 149, 307 I.P.C., Police
Station Jaswant Nagar, District Etawah,
whereby accused-appellants Kadam Singh,
Indra Bahadur and Srinet Singh have been
convicted and sentenced under Section 148,
307 and 149 I.P.C. while accusedappellants Mahabir Singh, Chhotey Singh
and Bhurey Singh had been convicted and
sentenced under Section 147, 307 I.P.C. All
the accused-appellants had been sentenced
with maximum punishment of 8 years
under Section 307 I.P.C. and other sections.

2. Prosecution story in brief as has
been set out in F.I.R. is as follows :-

On the date of occurrence i.e. on
12.03.1978 at about 08.00 p.m., injured
Suraj Singh and his wife Smt. Chandrawati
along with their children were inside the
house.
The
accused-appellants
Indra
Bahadur and Mahabir arrived at the house
of
Suraj
Singh
and
called
Smt.
Chandrawati. She opened the door and
asked them what was the work. Both the
accused persons told that some thieves
were hiding outside her house. The son of
Suraj Sigh, namely, Bharat and his mother
Smt. Chandrawati came out of the house
with a lighted kuppi and both saw that there
were no thieves outside the house. In the
meanwhile,
accused-appellant
Indra
Bahadur Singh gave a blunt blow to Bharat
with Ballam. She asked not to do so. The
accused persons were six in numbers. The
accused-appellants Bhurey Singh, Mahabir
and Chhotey Lal were armed with lathi,
while the accused Indra Bahadur Singh was
armed with Katta and Ballam, Sirnait Singh
with a Ballam and Kadam Singh was armed
with farsa. When Suraj Singh came out of
his house and accused Indra Bahadur Singh
fired upon him with his country made pistol
with intention to kill him. Suraj Singh
sustained firearm injury and fell down on
earth.
Smt.
Chandrawati
pulled
her
husband, Suraj Singh, inside the house and
saved him. All the accused pelted stones on
her house and tried to open the door.
Accused-appellants fled away leaving the
736 INDIAN LAW REPORTS ALLAHABAD SERIES
injured, when they saw the witnesses
coming.

3. Smt. Chandrawati took the injured
Suraj Singh to Police Station Jaswant
Nagar where F.I.R. (Ex.Ka-1) was lodged
at about 1.15 a.m. G.D. (Ex.Ka-6) was
drawn. The injured Suraj Singh was taken
to district hospital Etawah where he was
medically examined by Dr. Diwakar
Sharma, P.W.-5 at 3:40 a.m.

4. Investigating Officer undertook the
investigation of the case who collected the
evidence,
recorded
the
statement
of
witnesses, prepared site plan and after
completing
entire
formalities
of
investigation, filed charge sheet against the
accused-appellants.

5. Trial court framed the charge
against
the
accused-appellants
under
Sections 147, 148, 149, 307 I.P.C. The
accused-appellants pleaded not guilty and
claimed trial.

6. The prosecution, in order to prove
its
case,
examined,
P.W.-1
Smt.
Chandrawati, P.W.-2 Suraj Singh, P.W.-3
Mulayam Singh, P.W.-4 Head Constable
Nawaj Khan, P.W.-5 Dr. Diwakar Sharma,
out of whom P.W. 1 to 3 are the witnesses
of fact while rest two others are formal
witnesses. Sri Radheyshyam, Rajendra
Prasad, Gyan Chandra Mittal and Indra
Bahadur Singh have been examined from
the side of defence as D.W.-1, D.W.-2,
D.W.-3 and D.W.-4 respectively.

7. After appreciating the evidence, oral
and documentary on record trial court has
convicted
the
accused-appellants
and
sentenced them as noted above. Being
aggrieved with the impugned judgement,
accused-appellants preferred the present
criminal appeal.

8. As per C.J.M. Report dated
07.07.2008 and 08.06.2017, appellant nos. 1
to 4 i.e. Kadam Singh, Chhotey Singh, Sirnait
Singh and Bhurey Singh have died, thus, their
appeal has been abated by order of this Court
dated 17.07.2008 and 07.07.2017. Thus, the
present appeal survives for appellant no.5
Indra Bahadur, and appellant No. 6 Mahabir
Singh.

9. Heard Sri Sukesh Kumar, learned
counsel for the accused-appellants and
learned AGA for the State and perused the
record with the valuable assistance of learned
counsel for the parties.

10. Learned counsel for appellants
advanced the argument in the following
manner :-

(i) The accused-appellants are
innocent and have falsely been implicated in
the present case. They have committed no
offence.

(ii) There was a cross-case of the
incident and F.I.R., from the side of accused,
has already been lodged against the
prosecution but in cross-case, no charge
sheet was submitted by the Investigating
Officer.

(iii) The witness, said to be injured
in the incident, has not been produced from
the side of prosecution. Thus, prosecution
story has no reason to stand.

(iv)
There
are
several
contradictions and omission in statements
of witnesses rendering prosecution case
doubtful.
6 All. Kadam Singh & Ors. Vs. State of U.P.
737

(v) There is no strong motive to
accused-appellants to commit the present
crime. Without motive, there can be no
case against the accused-appellants. The
accused-appellant Mahabir Singh has not
been assigned any role in the incident.

(vi) In event, any case is found
against the accused-appellants, they should
be dealt with sympathetic consideration, as
the incident pertains to the year, 1978 and
about 45 years have been passed.

11. Per contra, learned AGA opposed
submissions by submitting that PW-1, 2
and 3 are witnesses of fact, who have
supported prosecution case; witnesses are
natural and reliable; and medical evidence
is totally compatible with the ocular
evidence. It is a case of direct evidence in
which motive has no importance, trial court
has committed no error in passing the
impugned judgement.

12. Now, I may proceed to examine
the witnesses of prosecution.

13. P.W.-1 Smt. Chandrawati states
on oath that accused-appellants Mahabir
Singh and Chhotey Lal were armed with
lathi, accused-appellants Kadam Singh was
armed with Farsa, Indra Bahadur was
armed with Katta and Ballam while
accused-appellant Srinet Singh was armed
with Ballam at the time of incident. She
further states that accused-appellant Indra
Bahadur Singh fired at her husband
(injured Suraj Singh) with intention to kill,
causing serious fire arm injuries, her
husband fell down on earth and that she
took him inside the house and bolted the
door from inside, thus she proved the
presence
of
accused-appellant
Indra
Bahadur Singh and Mahabir Singh along
with other accused-appellants on the spot.
The motive of the incident is said to take
some money by accused persons from her
son to which he demanded, on this account,
accused-appellants became annoyed. She
further states that accused-appellant Indra
Bahadur Singh fired at her husband,
causing fire arm injury of his upper right
arm, she bolted the door from inside. All
the accused appellants tried to break the
door but could not get success. On alarm
being made by her, witnesses arrived there,
whereupon accused-appellants ran away
with their respective weapon. With the help
of witnesses, her injured husband was taken
to police station and hospital later. She
further states that she put up a written tehrir
(Ex.Ka-1) to the police station concerned
on which F.I.R. was lodged and G.D. entry
was made. Her husband was medically
examined in hospital.

14. P.W. 2 Suraj Singh, injured stated
in his examination-in-Chief on oath that
accused-appellant Indra Bahadur Singh was
armed with Ballam and Katta, Srinet Singh
with Ballam, Kadam Singh with Farsa
while accused-appellants Bhurey Singh,
Mahabir Singh and Chhotey Lal were
armed with Lathi. At the time of incident,
all the accused-appellants started beating
him. He, specially, states that Indra
Bahadur Singh opened fire on him which
hit in his right upper arm causing serious
fire arm injury, due to which he fell down
on the ground. He also states that in the
meantime, he wielded lathi in his defence.
He further states that on the alarm being
raised, witnesses Munna Singh, Madai,
Mulayam Singh, Bhagwan Singh and some
other villagers also arrived on spot. He
further states that some P.A.C. Officials
also arrived there and on seeing them,
accused-appellants ran way from the spot.
According to him, he was taken to hospital
where he was medically examined.
738 INDIAN LAW REPORTS ALLAHABAD SERIES

15.

P.W.3
Mulayam
Singh,
supporting the prosecution case, states that
when he heard the alarm, he reached on
spot and saw that Lathi were being
exchanged between Suraj Singh and
accused-appellant.
Witness
further
supported the prosecution case by saying
that accused-appellant Indra Bahadur Singh
opened fire at Suraj Singh. Presence of
other accused has also been proved by the
P.W.-3. Witness further states that Suraj
Singh fell down on the ground, having been
injured in the incident. He further states
that Smt. Chandrawati wife of Suraj Singh
took him inside the house and bolted the
door from inside. When accused-appellants
ran away from the spot, Suraj Singh was
taken to police station and hospital later in
the injured position. Witness established
the presence of all the accused persons on
spot.

16. P.W.-5 Dr. Diwakar Sharma states
on oath that on 13.03.1978, he was posted
as
Medical
Officer
in
Government
Hospital, Etawah. On that very day, at
about 3:40 a.m., he examined Suraj Singh
and found fire arm injuries in the right
upper arm. Fresh bleeding present and
blackening was also present around the
wound and there was abrasion also in the
left index finger. Injury no. 1 was fire arm
injury which was kept under observation
and X-ray was advised. Doctor further
states that general condition of patient was
not good, he prepared the injury report
(Ex.Ka-2). He further opined that injuries
might be occurred at 8:00 p.m. on
12.03.1978. A lot of blood was lost from
the body of injured Suraj Singh, due to
which there was dryness.

17. All the three witnesses have
supported the prosecution case, establishing
the presence of accused-appellants on spot.
They were undertaken lengthy crossexamination by the defence side but
nothing could be brought adverse on record
in
the
cross-examination,
so
as
to
disbelieve their testimonial statement.

18. It appears that there have been
some
small
minor
contradiction
and
omission certainly in their statements of
witnesses but they are not to such an extent
so as to disbelieve the prosecution story. So
far
as
discrepancies,
variations
and
contradictions in prosecution case are
concerned,
we
have
analysed
entire
evidence in consonance with submissions
raised by learned counsel and find that the
same do not go to the root of case.

19. In Sampath Kumar v. Inspector
of Police, Krishnagiri, (2012) 4 SCC 124,
Court has held that minor contradictions
are bound to appear in the statements of
truthful witnesses as memory sometimes
plays false and sense of observation differs
from person to person.

20. We lest not forget that no
prosecution case is foolproof and the same
is bound to suffer from some lacuna or the
other. It is only when such lacunae are on
material aspects going to the root of the
matter, it may have bearing on the outcome
of the case, else such shortcomings are to
be ignored. Reference may be made to the
case of Smt. Shamim v. State of (NCT of
Delhi) (2018) 10 SCC 509.

21. Trial Court also considered the
defendce witnesses as D.W.-1, D.W-2,
D.W-3 and D.W.-4 but they did not find the
prosecution case doubtful.

22. So far as non-examination of
other eye witnesses is concerned, in view
of Section 134 of Indian Evidence
6 All. Kadam Singh & Ors. Vs. State of U.P.
739
Act,1872
(hereinafter
referred
to
as
'Act,1872'), I do not find any substance in
the submission of learned counsel for the
appellant.

23. Law is well-settled that as a
general rule, Court can and may act on the
testimony of a single witness provided
he/she is wholly reliable. There is no legal
impediment in convicting a person on the
sole testimony of a single witness. That is
the logic of Section 134 of Act, 1872, but if
there are doubts about the testimony, Court
will insist on corroboration. In fact, it is not
the numbers, the quantity, but the quality
that is material. Time-honoured principle is
that evidence has to be weighed and not
counted. Test is whether evidence has a
ring
of
truth,
cogent,
credible
and
trustworthy or otherwise.

24.

In
Namdeo
v.
State
of
Maharashtra (2007) 14 SCC 150, Court
re-iterated the view observing that it is the
quality and not the quantity of evidence
which
is
necessary
for
proving
or
disproving a fact. The legal system has laid
emphasis on value, weight and quality of
evidence
rather
than
on
quantity,
multiplicity or plurality of witnesses. It is,
therefore, open to a competent court to
fully and completely rely on a solitary
witness and record conviction. Conversely,
it may acquit the accused inspite of
testimony of several witnesses if it is not
satisfied about the quality of evidence.

25. In Yakub Ismailbhai Patel Vs.
State of Gunjrat reported in (2004) 12
SCC 229, Court held that :-

"The legal position in respect of
the testimony of a solitary eyewitness is
well settled in a catena of judgments
inasmuch as this Court has always
reminded that in order to pass conviction
upon it, such a testimony must be of a
nature which inspires the confidence of the
Court. While looking into such evidence
this Court has always advocated the Rule
of Caution and such corroboration from
other evidence and even in the absence of
corroboration if testimony of such single
eye-witness
inspires
confidence
then
conviction can be based solely upon it."

26. In State of Haryana v. Inder
Singh and Ors. reported in (2002) 9 SCC
537, Court held that it is not the quantity
but the quality of the witnesses which
matters for determining the guilt or
innocence of the accused. The testimony of
a sole witness must be confidence-inspiring
and beyond suspicion, thus, leaving no
doubt in the mind of the Court.

27. From the evidence led by both the
parties, it is evident that accused-appellant
Indra Bahadur Singh opened fire on Suraj
Singh with intention to kill him, causing
serious fire arm injuries on his upper arm
but role of accused-appellant Mahabir
Singh in the alleged incident is not
established. Although, his presence on spot
has been tried to be established. It is subject
to common prudence, if he had been on
spot, he would have certainly played an
active participation in the incident but his
active participation in the incident is not
proved from the evidence. It is also not
found in evidence that he had a common
object / intention of firing. His presence on
spot is highly doubtful and he is entitled to
get benefit of doubt.

28. So far as accused-appellant Indra
Bahadur Singh is concerned, it has been
well established from the evidence that he
was present on spot and with intention to
kill, he opened fire at Suraj Singh causing
740 INDIAN LAW REPORTS ALLAHABAD SERIES
serious fire arm injuries, due to which, he
became seriously injured and fell on the
ground. The learned Trial Court has taken
right view in this regard.

29. Having heard the learned counsel
for the parties and having perused the entire
evidence on record, I do not find any
illegality, irregularity, legal or otherwise, or
perversity in the impugned judgement in
convicting the accused-appellant Indra
Bahadur Singh but I do not see any good
ground to convict the accused-appellant
Mahabir Singh.

30. In view of discussion made above,
the appeal of accused-appellant Mahabir
Singh deserves to be allowed while the
appeal of accused-appellant Indra Bahadur
deserves to be dismissed.

31. Accordingly, the appeal of
accused-appellant Mahabir Singh would
stand allowed. He is acquitted of charge
levelled against him. The appeal of
accused-appellant Indra Bahadur Singh is
dismissed on merit. His conviction is
upheld and maintained.

32. So far as the sentence of accusedappellant Indra Bahadur Singh awarded by
trial court is concerned, it is settled legal
position that appropriate sentence should be
awarded after giving due consideration to
the facts and circumstances of each case,
nature of offence and the manner in which
it was executed or committed. It is
obligation of court to constantly remind
itself that right of victim, and be it said, on
certain occasions person aggrieved as well
as society at large can be victims, never be
marginalised. The measure of punishment
should be proportionate to gravity of
offence. Object of sentencing should be to
protect society and to deter the criminal in
achieving avowed object of law. Further, it
is expected that courts would operate the
sentencing system so as to impose such
sentence which reflects conscience of
society and sentencing process has to be
stern where it should be. The Court will be
failing in its duty if appropriate punishment
is not awarded for a crime which has been
committed not only against individual
victim but also against society to which
criminal and victim belong. Punishment to
be awarded for a crime must not be
irrelevant but it should conform to and be
consistent with the atrocity and brutality
which the crime has been perpetrated,
enormity of crime warranting public
abhorrence and it should 'respond to the
society's cry for justice against the
criminal'.
[Vide:
Sumer
Singh
vs.
Surajbhan Singh and others, (2014) 7
SCC 323, Sham Sunder vs. Puran, (1990)
4 SCC 731, M.P. v. Saleem, (2005) 5 SCC
554, Ravji v. State of Rajasthan, (1996) 2
SCC 175].

33. Hence, applying the principles
laid down in the aforesaid judgments and
having regard to the totality of facts and
circumstances of case, motive, nature of
offence, weapon used in commission of
murder and the manner in which it was
executed or committed. By the efflux of
time, accused-appellant Indra Bahadur
Singh must have aged and incident pertains
to the year, 1978 and 45 years has elapsed.
He should be dealt with sympathetic
consideration, if the sentence awarded to
him is reduced to five years rigorous
imprisonment. It would meet the ends of
justice.

34. The criminal appeal of accusedappellant Indra Bahadur Singh is partly
allowed and sentence awarded by trial
court is reduced and modified to the extent
6 All. Gulab Singh & Ors. Vs. State of U.P.
741
of five years rigorous imprisonment under
the alleged offence. Accused-appellant
Indra Bahadur Singh shall be taken into
custody to serve out the remaining sentence
accordingly. The sentence in any other
sections, if any, shall run concurrently. The
accused-appellant shall be entitled to get
benefit of Section 428 Cr.P.C.

35. Certify the judgement along with
the lower court record to the court
concerned for information and necessary
compliance.
----------
(2023) 6 ILRA 741
APPELLATE JURISDICTION
CRIMINAL SIDE
DATED:ALLAHABAD 10.05.2023

BEFORE

THE HON'BLE SIDDHARTHA VARMA, J.
THE HON'BLE MANISH KUMAR NIGAM, J.

Criminal Appeal No. 836 of 1983

Gulab Singh & Ors. ...Appellants
Versus
State of U.P. ...Opposite Party

Counsel for the Appellants:
Sri R.B. Sahai, Sri Aditya Yadav, Sri Anil
Kumar Singh, Sri G.S. Chaturvedi, Sri
Kamal Krishna, Sri Lav Srivastava, Sri
Mukesh Kumar Pandey, Sri R.B.Singh, Sri
Ranjit Singh,Sri Shyam Srivastava, Sri
Shyam Sunder Misra, Sri Sunder Mishra, Sri
Surendra Singh, Sri Sushil Kumar Dwivedi,
Sri V.P. Srivastava, Sri Vikas Bhatnagar, Sri
Virendra Kumar Yadav, Sri Vishesh Kumar

Counsel for the Opposite Partiy:
DGA, A.G.A., Sri Ramesh Sinha

(A)
Criminal
Law
-
appeal
against
conviction - Indian Penal Code, 1860 -
Sections 302/149 , 307/149 , 148 & 147 -
Juvenile Justice (Care and Protection) of
Children Act, 2015 - Section 94(2) -
Presumption and determination of age,
Section
24
(1)
-
Removal
of
disqualification on the findings of an
offence,
Section
18(1)(g)
-
Orders
regarding child found to be in conflict with
law
,

Juvenile
Justice
(Care
and
Protection of Children) Rules, 2007 - Rule
12(3)(b) - Procedure to be followed in
determination of age , The U.P. Panchayat
Raj Act, 1947 - Section 110 - Powers of
State Government to make Rules, The U.P.
Panchayat Raj (Maintenance of Family
Registers) Rules, 1970 - Rules 5 , 6 ,73 ,
Indian Evidence Act, 1872 - Section 35 -
Relevancy of entry in public record made
in performance of duty.

(B)
Criminal
Law
-
no
substantial
difference between the Juvenile Justice
(Care and Protection of Children) Act 2005
and
the
Juvenile
Justice
(Care
and
Protection of Children) Act 2000 - Act of
2015 focuses on crime committed by
children aged 16-18 years - Board's
determination of age is conclusive proof of
a child or juvenile in conflict with law -
age recorded by the committee or Board
for the purposes of the Act of 2015 is
considered the true age.(Para - 35)

Judgment and order passed in appeal -
challenged before Supreme Court in Special
Leave to Appeal - court declined to interfere
with conviction order - but issued a direction for
the High Court to consider and pass orders on
the application of Applicant no.10 - who
claimed to be juvenile on the incident date -
Finding
recorded
by Board
-
Competent
Authority signed family register cuttings - date
of birth of appellant no. 10 was changed from
28.05.1965 to 03.06.1965 - difference of five
days - no benefit is given to the appellant no.
10. (Para -14, 31)

HELD:-Board finds appellant no. 10 was a
juvenile at the time of commission of the
offence i.e. 05.12.1982 , based on cogent
evidence. Sentenced to 3 years in prison, but
entitled to the Act of 2015 benefit due to his
juvenile status. Sending to a special home for
three years is unjust due to appellant's over 3
year sentence as per Section 18(1)(g) of 2015