# Kanhaiya & Ors v. State of U.P

- **Citation:** (2025) 7 ILRA 713
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2025-07-23
- **Case number:** Criminal Appeal No. 2125 of 1984
- **Bench:** Siddharth, Avnish Saxena
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/kanhaiya-ors-v-state-of-u-p-53630
- **Pages:** 10

## Headnote

A.G.A.

Issue for Consideration

I. Whether the youthful offenders/appellants are
to be punished like an adult.
II. The role of two child- accused in their
individual acts and also whether they were the
members of unlawful assembly.
Head Notes

The Code of Criminal Procedure, 1973 -
Section 374 - The Uttar Pradesh Children
Act, 1951 - Sections 2(4), 2(13), 27, 33,
63 - Conviction of the accused persons
under sections 302 r/w 149 & 147 IPC-
The trial judge has specifically mentioned
the age of accused Chhedi and Madan are
15 years and 13 years, respectively - Child
less than sixteen years of age is a youthful
offender - Trial judge has committed an
error of law and fact in failing to
determine the age of the child and
sentencing the appellants as an adult -
Appellants
were
child
and
youthful
offenders at the time of incident though
rightly been considered to be involved in
the offence of being a member of unlawful
assembly but incorrectly being sentenced
as an adult - Appeal Partly allowed.

Held - Appellants who were child and youthful
offenders at the time of incident though rightly
been considered to be involved in the offence of
being a member of unlawful assembly but
incorrectly being sentenced as an adult - Section
27 of the Act further clarifies that a child, who is
12 years of age or upward may be committed to
prison when the court certifies that the child is
(1) so unruly, (2) so depraved a character that
he is not fit to be sent to an 'approved school'.
The trial judge has not even considered this
aspect of punishment and sent the appellants to
the prison - The conviction of accused
appellants being youthful offenders is upheld
but their sentences are being reduced to period
already undergone. (Para 37, 38, 39 & 40)
(E-15)

Case Law Cited
Ashok Kumar Mehra and another Vs. State of
Punjab [AIR 2019 SC 1903]; Mohd. Gufran Vs.
State of U.P [(1990) All. L.J. 540]; Kalika Tiwari
Vs. state of Bihar [(1997) 4 SCC 2186]; Shivraj
Bapuray Jadhav and others Vs. State of
Karnataka [(2003) 6 SCC 392];

List of Acts

The Code of Criminal Procedure, 1973 -
The Uttar Pradesh Children Act, 1951
714 INDIAN LAW REPORTS ALLAHABAD SERIES
List of Keywords
Child less than sixteen years of age; Youthful
offenders; incorrectly sentenced as an adult;
Error of law and fact

Case Arising From
Judgment of conviction and sentence dated 31st
July, 1984 passed by Special Judge, Varanasi in
Sessions Trial No. 240 of 1982, State Vs.
Kanhaiya and 4 others, arose out of case crime
no. 203 of 1982, P.S. Bhelupur, District
Varanasi, whereby the five appellants have been
convicted for committing the offence of murder
after forming unlawful assembly under Section
302 read with Section 149 IPC and Section 147
IPC

Appearances for Parties
Counsel for Appellant :- Gagan Mehta, Kalp
Nath, Parmeshwar Kr. Chaudhary
Counsel for Respondent :- A.G.A.

Judgment/Order of the High Court

## Text

7 All. Kanhaiya & Ors. Vs. State of U.P.
713
been convicted and sentenced have been
proved beyond doubt before the trial court
and the appellant has failed to give any
explanation and prove anything contrary
even by producing a defence witness,
which may give any benefit to the
appellant. This Court is of the view that
looking to the crime committed by the
appellant, the trial court has passed the
impugned
judgment
and
order
in
accordance with law, after considering the
evidence and material on record, which
does not suffer from any illegality or error.
Thus, The appeal has been filed on
misconceived and baseless grounds.

30. The appeal is, accordingly,
dismissed.
----------
(2025) 7 ILRA 713
APPELLATE JURISDICTION
CRIMINAL SIDE
DATED: ALLAHABAD 23.07.2025

BEFORE

THE HON'BLE SIDDHARTH, J.
THE HON'BLE AVNISH SAXENA, J.

Criminal Appeal No. 2125 of 1984

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

Counsel for the Appellants:
Gagan Mehta, Kalp Nath, Parmeshwar Kr.
Chaudhary

Counsel for the Respondent:
A.G.A.

Issue for Consideration

I. Whether the youthful offenders/appellants are
to be punished like an adult.
II. The role of two child- accused in their
individual acts and also whether they were the
members of unlawful assembly.
Head Notes

The Code of Criminal Procedure, 1973 -
Section 374 - The Uttar Pradesh Children
Act, 1951 - Sections 2(4), 2(13), 27, 33,
63 - Conviction of the accused persons
under sections 302 r/w 149 & 147 IPC-
The trial judge has specifically mentioned
the age of accused Chhedi and Madan are
15 years and 13 years, respectively - Child
less than sixteen years of age is a youthful
offender - Trial judge has committed an
error of law and fact in failing to
determine the age of the child and
sentencing the appellants as an adult -
Appellants
were
child
and
youthful
offenders at the time of incident though
rightly been considered to be involved in
the offence of being a member of unlawful
assembly but incorrectly being sentenced
as an adult - Appeal Partly allowed.

Held - Appellants who were child and youthful
offenders at the time of incident though rightly
been considered to be involved in the offence of
being a member of unlawful assembly but
incorrectly being sentenced as an adult - Section
27 of the Act further clarifies that a child, who is
12 years of age or upward may be committed to
prison when the court certifies that the child is
(1) so unruly, (2) so depraved a character that
he is not fit to be sent to an 'approved school'.
The trial judge has not even considered this
aspect of punishment and sent the appellants to
the prison - The conviction of accused
appellants being youthful offenders is upheld
but their sentences are being reduced to period
already undergone. (Para 37, 38, 39 & 40)
(E-15)

Case Law Cited
Ashok Kumar Mehra and another Vs. State of
Punjab [AIR 2019 SC 1903]; Mohd. Gufran Vs.
State of U.P [(1990) All. L.J. 540]; Kalika Tiwari
Vs. state of Bihar [(1997) 4 SCC 2186]; Shivraj
Bapuray Jadhav and others Vs. State of
Karnataka [(2003) 6 SCC 392];

List of Acts

The Code of Criminal Procedure, 1973 -
The Uttar Pradesh Children Act, 1951
714 INDIAN LAW REPORTS ALLAHABAD SERIES
List of Keywords
Child less than sixteen years of age; Youthful
offenders; incorrectly sentenced as an adult;
Error of law and fact

Case Arising From
Judgment of conviction and sentence dated 31st
July, 1984 passed by Special Judge, Varanasi in
Sessions Trial No. 240 of 1982, State Vs.
Kanhaiya and 4 others, arose out of case crime
no. 203 of 1982, P.S. Bhelupur, District
Varanasi, whereby the five appellants have been
convicted for committing the offence of murder
after forming unlawful assembly under Section
302 read with Section 149 IPC and Section 147
IPC

Appearances for Parties
Counsel for Appellant :- Gagan Mehta, Kalp
Nath, Parmeshwar Kr. Chaudhary
Counsel for Respondent :- A.G.A.

Judgment/Order of the High Court

(Delivered by Hon'ble Avnish Saxena, J.)

1. Heard Sri Kalpnath, learned
counsel for the surviving appellant nos. 4
and 5, Mrs. Manju Thakur, learned AGA-1st for the
State and perused the record.

2. This criminal appeal has been preferred against
the judgment of conviction and sentence dated 31st July,
1984 passed by Special Judge, Varanasi in Sessions
Trial No. 240 of 1982, State Vs. Kanhaiya and 4 others,
arose out of case crime no. 203 of 1982, P.S. Bhelupur,
District Varanasi, whereby the five appellants have been
convicted for committing the offence of murder after
forming unlawful assembly under Section 302 read
with Section 149 IPC and Section 147 IPC. EACH
convict has been sentenced to life imprisonment u/s 302
IPC and one year's rigorous imprisonment for
committing offence under Section 147 IPC. It is directed
that both the sentences shall run concurrently.

3. Out of five accused-appellants, namely,
Kanhaiya, Mannu, Bahadur @ Bhagudar, Chhedi and
Madan, first three accused-appellants passed away
during the pendency of appeal. Hence, the appeal was
dismissed as abated against Kanhaiya and Mannu by
order dated 2nd February, 2018, whereas appeal against
Bahadur @ Bhagudar was dismissed as abated by
order dated 30th August, 2022.

On the point of declaration of appellant nos. 4
and 5 as 'Child' :-

4. The remaining two accused, namely, Chhedi
and Madan were claimed to be minor and below 16
years of age at the time of incident. Therefore, the
learned counsel for the appellants no. 4 and 5 has filed
two applications, viz., Crl. Misc. Application No. 1 of
2018 to declare appellant no.4, Chhedi @ Chhedi Lal
son of Gulab, as 'child' and Crl. Misc. Application No.
nil of 2018 for declaring appellant no.5, Madan, as a
'child'.

5. Hence prior to considering the merits of the
grounds taken in appeal, it would be expedient to
consider the above noted applications moved by the
learned counsel for the appellants, who has relied on the
case of Ashok Kumar Mehra and another Vs. State of
Punjab1 on the point that the application for declaring a
person as juvenile could be moved and
considered at any stage, including the
appellate stage.

6. We have perused the later part of
the impugned judgment under challenge in
appeal and found that the issue of juvenility
of accused-Chhedi and Madan was raised
even at the time of trial before the trial
judge and the trial judge while convicting
the accused has made an observation that
the accused persons are more than 12 years
of age and held them responsible for
committing
the
crime.
The
relevant
paragraph of the impugned judgment is
required to be quoted underneath :-

"As regards the last submission
of the learned defence counsel that accused
Chhedi and Madan are minor and
7 All. Kanhaiya & Ors. Vs. State of U.P.
715
therefore, it is most improbable that they
could have participated in this occurrence,
it is to be observed that any person of 12
or more than 12 years of age could be held
responsible for committing the crime.
Undisputedly both the accused Chhedi and
Madan were more than 12 years of the age
at the time of occurrence. Therefore, it
could not be said that they could not have
participated in the occurrence."

7. On the point of age of the
appellant, Chhedi @ Chhedi Lal son of
Gulab, it is mentioned in the accompanying
affidavit that the date of birth of accusedChhedi is 3rd April, 1969, as mentioned in
the school leaving certificate dated 29th
April 1982 of Basic Primary Pathshala,
Shivpurwa Mandal, Zila Varanasi, wherein
it is mentioned that the name of Chhedi Lal
has been deleted from the register of school
as he is continuously absent. He has passed
class-III and was in class-IV, when his
name was struck off due to his indefinite
absence from school.

8. The incident occurred on 8th April,
1982. While recording the statement of
appellant-Chhedi
under
Section
313
Cr.P.C., on 23rd June 1984, the learned trial
judge has mentioned his age as 15 years.
This shows that the Trial Judge was aware
of the fact that child was below 16 years of
age. According to Transfer Certificate
(T.C.) the age of the accused, Chhedi, was
13 years and 5 days on the date of
occurrence.

9. So far as, the age of appellantMadan son of Gulab, is concerned, it is
mentioned in the accompanying affidavit
that the date of birth of accused/appellantMadan is 28th July, 1967, as is mentioned
in the birth certificate issued by Municipal
Corporation, dated 4th May, 2018.

10. The incident occurred on 8th
April, 1982. While recording the statement
of accused, Madan, under Section 313
Cr.P.C. on 23rd June 1984, learned trial
judge has mentioned his age as 13 years.
This shows that the Trial Judge was aware
of the fact that Madan was below 16 years
of age. According to birth certificate issued
by Municipal Corporation, the age of the
accused/appellant- Madan was 15 years, 3
months and 5 days on the date of
occurrence.

11. The learned trial judge while
dealing with the age of accused has merely
considered that the age of accusedappellant nos. 4 and 5 as more than 12
years, but has not considered them as child
and youthful offender in view of Sections
2(4) and (13) respectively of U.P. Children
Act, 1951. The Act provides under subSection (4) the definition of 'child' under
the Act, which means "a person under the
age of sixteen years", whereas, sub-Section
(13) provides the definition of 'youthful
offender' meaning "any child, who has
been found to have committed an offence
punishable
with
transportation
or
imprisonment".

12. Chapter-IV of the Act deals with
youthful offender. On the point of sentence,
Section 27 of the Act is reiterated
underneath:-

"Section 27:Sentences that may
not be passed on child.- Notwithstanding
anything to the contrary contained in any
law, no court shall sentence a child to
death or transportation or imprisonment
for any term or commit him to prison in
default of payment of fine :Provided that a
child who is twelve years of age or upwards
may be committed to prison when the court
certifies that he is of so unruly, or of so
716 INDIAN LAW REPORTS ALLAHABAD SERIES
depraved a character that he is not fit to be
sent to an approved school and that none of
the other methods in which the case may
legally be dealt with is suitable."

Wherein, by non-obstante clause the
trial court is restrained from imposing a
sentence on child but it is provided that if a
child is 12 years of age or upwards he may
be committed to prison only when the court
certifies that the child is 'so unruly', 'so
depraved a character' that the court
considered it fit to send the child to prison.

13. Section 33 of the Act provides, the
method of dealing with children charged
with offences and what sentence could be
awarded once the court is satisfied about the
guilt of the child. The provision is reiterated
underneath :-

"Section 33:Methods of dealing
with children charged with offences.- Where
a child charged with any offence is tried by
any court, and the court is satisfied of his
guilt the court shall, before passing orders,
take into consideration the manner in which,
under the provisions of this or any other Act
enabling the court to deal with the case, the
case should be dealt with, namely, whether-

(a) by discharging the offender
after due admonition; or

(b) by committing the offender to
the care of his parent, guardian, other adult
relative or other fit person or such parent,
guardian, relative or person executing a bond
to be responsible for his good behaviour; or

(c) by so discharging the offender
and placing him under the supervision of a
person named by the court; or

(d) by committing the offender to
the custody of any suitable person, whether a
relative or not, who is willing to undertake
the care of the offender; or

(e) by releasing the offender on
probation of good conduct; or

(f) by sending the offender to an
approved school; or

(g) by ordering the offender to pay
a fine; or

(h) by ordering the parent or
guardian of the offender to pay a fine; or

(i) by dealing with the case in any
other manner in which it may be legally dealt
with ; or

(j) when the offender is a child of
twelve years of age or upwards by sentencing
him to imprisonment:

Provided that nothing in this
section shall be construed as authorizing the
court to deal with any case in any manner in
which it could not deal with the case but for
this section."

14. Section 63 of the Act provides for
joint trial of children and adult, which
provides that the child may be jointly tried
together with an adult, but the sentence is to
be awarded in accordance with the provision
of this Act. Section 63 is reiterated
underneath:-

"Section 63: Joint trial of the
child and adult.- Where a child is charged
with an offence together with any, other
person
not
being
a
child
then
notwithstanding anything contained in this
Act the child may be tried top ether with the
adult in accordance with the provisions of
the Code of Criminal Procedure, 1898, and
nothing in this Act shall require the child to
be tried by a Juvenile Court but the
sentence, if any, awarded to the child shall
be in accordance with the provisions of this
Act."

15. As to the presumption and
determination of age of child, Section 73 of
the Act casts a duty on the court to make an
7 All. Kanhaiya & Ors. Vs. State of U.P.
717
inquiry as to the age of a person before the
court. Section 73 is reiterated underneath:-

"Section 73: Presumption and
determination of age.- (1) Where a person,
whether charged with an offence or not, is
brought before any court otherwise than for
the purpose of giving evidence and it
appears to the court that he is a child, the
court may make due inquiry as to the age of
that person and for that purpose, may take
such evidence as may be forthcoming, and
may record a finding thereon, stating his
age as nearly as may be.

(2) A declaration by the court
under the preceding sub-section as to the
person brought before it being under the
age of sixteen years shall for the purposes
of this Act be final and no court shall in
appeal or revision interfere with any such
declaration."

In the present case the trial judge has
specifically mentioned the age of Chhedi
and Madan are 15 years and 13 years,
respectively.
while
recording
their
statements under Section 313 Cr.P.C., and
also considered the age of Chhedi and
Madan as above 12 years, though the Act
specifically provides that a child less than
sixteen years of age is a youthful offender.
The learned trial judge has committed an
error of law and fact in failing to determine
the age of the child and sentencing the
appellants as an adult.

16. The conviction of accused Madan
and Chhedi has been recorded in the year
1984. The appeal is pending since then. The
trial court was aware of the age of
appellants but the trial judge has sentenced
the children ignoring the provision of
Section 73 of the Act and has failed to
determine their age. The Act of 1951
remained in force till the Union legislature
passed the Juvenile Justice Act, 1986,
enforced w.e.f., 1st December, 1986.
Section 63 of Juvenile Justice Act provides
for repeal and savings of all the acts
applicable in the State dealing with
juvenile. The repealing of Act of 1951 by
the Act of 1986 has been dealt with by this
High Court in the case of Mohd. Gufran
Vs. State of U.P.2 In paragraph 3 it was
held, " I, however, find that as the
Juvenile Justice Act, 1986 (hereinafter
referred to as the Juvenile Act) came into
force with effect from 3.12.1986 and in
view of provisions of Section 63 of the
Juvenile Act, 1986 regarding repeal, the
U.P. Children Act 1951 relied upon by the
trial court is now no longer in existence
and the case has to be proceeded with
under the provisions of the Juvenile Act,
1986......". Section 63 of the Juvenile
Justice Act is reiterated underneath:-

"Section 63 of the J.J.Act:
Repeal and savings. - If, immediately
before the date on which this Act comes
into force in any State, there is in force in
that State, any law corresponding to this
Act, that law shall stand repealed on the
said date :

Provided that the repeal shall not
affect -

(a) The previous operation of any
law so repealed or anything duly done or
suffered thereunder ; or

(b)
Any
right,
privilege,
obligation or liability acquired, accrued or
incurred under any law so repealed ; or

(c) Any penalty, forfeiture or
punishment incurred in respect of any
offence committed against any law so
repealed; or

(d)
any
investigation,
legal
proceeding or remedy in respect of any
such right, privilege, obligation, liability,
718 INDIAN LAW REPORTS ALLAHABAD SERIES
penalty,
forfeiture
or
punishment
as
aforesaid;

and any such investigation, legal
proceeding or remedy may be instituted,
continued or enforced and any such
penalty, forfeiture or punishment may be
imposed, as if this Act had not been
passed."

Even in the act of 1986, the juvenile
means a boy, who has not attained the age
of 16 years but for a girl the age was 18
years, which was 16 years for both boy and
girl in the U.P. Children Act, 1951.

17. The document filed in support of
the age of child/youthful offender is
substantiated by school leaving certificate
and date of birth certificate of Nagar
Nigam, which remained uncontroverted.
Sending the matter for inquiry before the
trial court or conducting any further inquiry
at this stage in respect to certificate
appended by the two youthful offenders,
may lead to further delay in disposal of the
case, more so, when learned trial judge has
made an observation in the judgment that
two accused are above 12 years of age and
recorded their statements entering their age
as less than 16 years. The documents
appended by accused, Madan and Chhedi,
supported by affidavits clearly, show that
Madan was 15 years, 3 months and 20 days
of age, whereas, Chhedi was 13 years and 5
days of age on the date of incident (8th
April 1982).

18. Therefore, the two appellants
were the youthful offenders within the
meaning provides under U.P.Children
Act,
1951.
Hence
the
Crl.
Misc.
Application No. 1 of 2018 and Crl. Misc.
Application No. nil of 2018 are Allowed.

Discussion on merit of grounds in
Appeal :-

19. According to the FIR lodged by
the informant Smt. Phulari (P.W.-1) written
by Vishnu (P.W.-2) on 8th April, 1982,
10.30 p.m. at P.S. Bhelupur, Sadar,
Varanasi, situated at distance of 5 kms.
from the place of incident i.e. Tulsipur,
Varanasi, there was a drain (parnala, spout)
falling from the house of informant open in
the lane. In the evening of 8th April, 1982
Kanhaiya, Bahadur and Madan had closed
that drain as it used to damage the wall of
their house and create sludge on the
pathway. In the night when her son Lakhan
returned home at 9.30 p.m., he has opened
that drain, on which Kanhaiya exhorted and
stated that Lakhan is opening the drain.
Hearing the same Mannu, Bahadur @
Bhagudar, Chhedi and Madan reached
there. Bahadur @ Bhagudar was having
iron rod, Madan was carrying brick,
whereas, Kanhaiya, Mannu and Chhedi
were wielding lathis in their hands. They
have dragged Lakhan to the trisection
(tiraha) and inflicted lathi and iron rod
blows on Lakhan. On hearing the hue and
cry of her son, the informant, her daughter
Chandar (P.W.-3) came out from the house
and saw that the accused were beating her
son. On wailing for help, Vishnu, Bhaiya
Lal and Sukkhu came to the spot. Lakhan
became unconscious and was dragged by
Kanhaiya towards the house and stated that
Lakhan is still alive, on which Madan gave
a brick blow on his head. Lakhan died on
the spot. On seeing villagers, the accused
sprinted away from the spot. The incident
was witnessed in the light of lantern and
moonlight.

20. The FIR has been registered
against Kanhaiya, Mannu, Bahadur @
Bhagudar, Chhedi and Madan. The inquest
7 All. Kanhaiya & Ors. Vs. State of U.P.
719
on the dead body of Lakhan has been
carried out by S.I. Hari Raj Singh (P.W.-6)
at 1.00 a.m. in the intervening night of
8/9.4.1982
in
presence
of
inquest
witnesses, namely, Kailash Prasad, Bhaiya
Lal son of Khilawan, Babu Lal, Somnath
and Bhaiya Lal son of Heera Lal, wherein it
is reported that Lakhan died due to injuries
sustained by him.

21. After inquest, the dead body was
sealed on the spot and handed over to
Constable- Lalta Prasad Yadav (P.W.-4) and
Constable- Singhasan Prasad Nirala for
post mortem examination, the post mortem
of the dead body was conducted on 9th
April,
1982
at
3.00
p.m.
by
Dr.
C.B.Tripathi
(P.W.-5).
Following
ante
mortem injuries have been recorded in the
post mortem report.

(i) Lacerated would 4-1/2 cm x 2
cm x brain deep over right forehead
including eye-brow outer part, 6 cm right
to midline.

(ii) Contusion 5 cm x 1 cm over
right eye upper lid, contusion externally
(outward) to the Zygoma-- Transversely
placed.

(iii)
Lacerated
wound
transversely placed 4-1/2 cm x 1 cm over
left ear pinna, lacerated the cartilage.

(iv)
Lacerated
wound
transversely placed 4-1/2 cm x 1-/12 cm
scalp deep over left occipito-- partial
region of head. 7 cm above and back to left
ear.

(v) Lacerated wound 1-1/2 cm x
3/4 cm over back of pinna of left ear 1/2 cm
below injury no.3.

(vi) Contused swelling 11 cm x 7
cm over left cheek, mandibular region
including chin with fracture of body of
mandable left side at mid.

(vii) Linear abraded contusion 9
cm x 1 cm - transversely placed over right
side mandibular region (body) inclucing
mid line of chin with fracture of mandibule
in the mid line (front).

(viii) Abraded contusion 3 cm x 1
cm over right mastoid region 2 cm behind
right ear.

(ix) Abraded contusion 2-1/2 cm
x 1-1/2 cm over right collar bone-- outer
1/3rd-- 8 cm outer to mid line.

(x) Abraded contusion 3 cm x 31/2 cm over front of right knee joint.

(xi) Lacerated wound 1 cm x 1⁄2
cm over back of upper third of left fore arm
with fracture of ulna 4 cm below elbow
joint.

(xii) Multiple abraded contusions
in an area of 34 cm x 12 cm over back of
left side trunk from upper border of scapula
to lumber region including mid line.

On internal examination I found the
following condition:-

Scalp-Contusion of scalp (on
opening and reflection) 13 cm x 12 cm over
both side occipital region and adjoining
perital region both side.

Skull-Depressed
comminuted
fracture of right side frontal bone including
right supra arbital ridge and superior
surface of right orbital bone.

Membrace- Ruptured over right
frontal lobe.

Brain- Laceration of right frontal
lobe including orbital surface. Sub dural
haemorrhage over left temporal lobe.

Base-Fracture
of
both
side
temporal bone communicating through
fracture of middle fossa.

22. After investigation the charge
sheet was submitted under Section 302/147
IPC against the appellants-accused.
720 INDIAN LAW REPORTS ALLAHABAD SERIES

23. The prosecution produced three
witnesses
of
fact
and
three
formal
witnesses. Smt. Phulari and Smt. Chandar
were examined as P.W.-1 and P.W.-3
respectively, whereas Vishnu has been
examined as P.W.-2, independent witness,
who was declared hostile.

24.

Before
dealing
with
the
depositions of Smt. Phulari and Smt.
Chandar, the deposition of independent
witness Vishnu is required to be discussed.

25. Learned trial judge while
appreciating the evidence has considered
the deposition of P.W.-2 Vishnu as partly
reliable and partly non-reliable. On the
point of FIR and source of light, this
witness has not been relied upon. P.W.-2
has
stated,
being
scribe
of
written
information, that last eleven lines of the
written information was written in the
police station, though P.W.-1 Smt. Phulari
has deposed that the complete first
information was dictated to P.W.-2 Vishnu
at her residence. Learned trial judge has
gone through the first information report
Ex.Ka-1 and found that statement of P.W.-2
Vishnu that the last eleven lines of the
written information were written at the
police station does not appeal to reason is
based on the fact that there is continuity of
hand-writing and use of one pen. The
observation of the trial judge does not
requires any interference.

26. Moreover, the last eleven lines of
the FIR shows that the informant and
witness had seen the incident in the light of
moon and lantern. The trial judge has made
an observation about the existence of the
source of light and belied the contention of
defense that the source of light has not been
proved by the prosecution as the lantern has
not been taken into custody by the
Investigating Officer. It is also observed
that the assailants were neighbours, who
could be easily identified. This observation
of learned trial judge also does not require
interference in view of the observation of
Apex Court in the case of Kalika Tiwari
Vs. state of Bihar3 that " The visible
capacity
of
urban
people
who
are
acclimatized to florescent light is not the
standard to be applied to villagers whose
optical potency is attuned to country made
lamps. Visibility of villagers is conditioned
to such lights and hence it would be quite
possible for them to identify men and
matters in such lights".

27. Further, the Apex Court in the
case of Shivraj Bapuray Jadhav and
others Vs. State of Karnataka4 has
observed that the parties who knows each
other as neighbours could easily identify
each other even from their voices.

28. P.W.-2 Vishnu, further stated that
there was an altercation between Lakhan
(deceased) and Mannu, Kanhaiya, Bahadur,
Mandan and Chhedi, due to drain (spout-
parnala), when Lakhan has thrown bricks
(Addha) the persons gathered there had
stepped back "थोड़ा पीछे हट गए". He then stated
that there was no weapon in the hand of
Bahadur and Chhedi. On seeing Kailash,
Sukkhu, Shobhnath and others, accused
sprinted
away.
During
his
cross
examination this witness has stated that
there is lane in between the house of
accused and deceased-Lakhan. The incident
took place in the lane. He specifically
stated that Madan has injured Lakhan by
the brick in his hand. From the statement of
Vishnu it is reflected that he has witnessed
the incident and presence of all the
accused, though stated that Bahadur and
Chhedi were not having any weapon, which
is considered not reliable by the Trial
7 All. Kanhaiya & Ors. Vs. State of U.P.
721
Judge. We are of the same view as seeing
the involvement of family members in
beating Lakhan, how the two accused
would have restraint themselves from
involving in the fight.

29. The point for consideration in the
present appeal is the role of two child-
accused in their individual acts and also
whether they were the members of
unlawful assembly.

30. It is consistent statement of P.W.-1
Smt.Phulari and P.W.-3 Smt. Chandar,
respectively the mother and sister of
deceased-Lakhan, that the accused came to
the house to block the drain, as it was
damaging the wall of the accused and
created sludge in the lane in between the
house of accused and deceased. It is also
the consistent statement of these two
witnesses that Lakhan, when he returned
home at about 9.30 p.m. on 08.04.1982, he
went to open the drain, which was the
cause of altercation and fight between
them. It is further stated that when Lakhan
was opening the drain, accused Kanhaiya
has exhorted that Lakhan is opening the
drain, on hearing which, other co-accused
came out.

31. There are 12 ante mortem injuries
on the person of deceased, caused by hard
and blunt object. In the opinion of Dr.
C.B.Tripathi, P.W.-5, the deceased Lakhan
died due to coma as a result of head injury
and injury to the brain. The post mortem
report reveals fatal injuries on the head of
deceased.

32. The prosecution has proved the
presence of appellants-accused and the
place of incident. P.W.-5 Dr. C.B.Tripathi
has refuted the suggestion of defense that
the injuries sustained by Lakhan were due
to fall.

33. The point of grave and sudden
provocation
allegedly
given
by
the
deceased is of no help to the appellantsaggressors, as the prosecution has proved
that prior to altercation, the accused had
closed the drain of the house of the
deceased, which was being opened by the
deceased when the incident took place.
This shows that accused themselves had
provoked the cause.

34. As three of the main accused have
already
passed
away. The
point
of
consideration is the role of youthful
offender in the incident, as being the
member
of
unlawful
assembly
for
committing the act with the same intention
and knowledge attract punishment.

35. From the statement of P.W.-1
Phulari, the relation between the accused is
clarified. Accused Mannu was brother of
Gulab and Heera; Gulab and Heera passed
away. Accused-Bahadur is the son of
Mannu; Accused Chhedi and Madan were
sons of Gulab; and Kanhaiya was son of
Heera. There was specific question put to
P.W.-1 Smt. Phulari that all the male
members
of
the
family
have
been
implicated as accused in the case, which
was replied affirmatively. The purpose
behind the question is false implication of
all the male members of the family, so that,
there is no-one to stand to fight their legal
battle.

36. Smt. Phulari and Smt. Chandar in
their respective depositions have stated that
Chhedi was inflicting lathi blow and
Madan had given a brick blow on the head
of
deceased-Lakhan.
Moreover, PW-3
Vishnu has also stated that Madan had
722 INDIAN LAW REPORTS ALLAHABAD SERIES
inflicted brick blow on Lakhan. Therefore,
their role of the appellants in the incident,
which has rightly been considered by the
trial judge. Hence, we do not find any
ground of interference in the order of
conviction.

37. The only point of consideration is
whether the youthful offenders/appellants
are to be punished like an adult.

38. Section 63 of 1951 Act, though
provides for joint trial of child and adult,
but the sentence, if any, is to be awarded to
the child in accordance with Section 33 of
the Act. The learned trial judge though
considered the surviving appellants above
12 years of age but had ignored to apply the
provisions of Uttar Pradesh Children Act,
1951 in awarding punishment.

39. Section 27 of the Act further
clarifies that a child, who is 12 years of age
or upward may be committed to prison
when the court certifies that the child is (1)
so unruly, (2) so depraved a character that
he is not fit to be sent to an 'approved
school'. The trial judge has not even
considered this aspect of punishment and
sent the appellants to the prison.

40. Therefore, we are of the
considerate view that the appellants who
were child and youthful offenders at the
time of incident though rightly been
considered to be involved in the offence of
being a member of unlawful assembly but
incorrectly being sentenced as an adult.

41. Therefore, the appeal is partly
allowed. The conviction of accusedappellants being youthful offenders is
upheld but their sentences are being
reduced to period already undergone in
Sessions Trial No. 240 of 1982, State Vs.
Kanhaiya and 4 others, under Section 302
read with Section 149 and Section 147 IPC
in case crime no. 203 of 1982, P.S.
Bhelupur, District Varanasi.

42. Office is directed to return the
trial court's record along with a copy of this
judgment to the trial court within ten days.
----------
(2025) 7 ILRA 722
ORIGINAL JURISDICTION
CIVIL SIDE
DATED: ALLAHABAD 16.07.2025

BEFORE

THE HON'BLE SIDDHARTH, J.
THE HON'BLE AVNISH SAXENA, J.

Criminal Misc. Writ Petition No. 11627 of 2025

Santosh ...Petitioner
Versus
State of U.P. & Anr. ...Respondents

Counsel for the Petitioner:
Ankit Kumar Singh, Vikas Sharma

Counsel for the Respondents:
G.A.

Issue for Consideration
Whether non exercise of discretion u/s 427 (1)
of The Code of Criminal Procedure, 1973 of
consecutive or concurrent running of sentence
by the trial Judge while convicting the petitioner
simultaneously in six cases led to travesty of
justice and long incarceration in jail.

Head Notes
The Constitution of India, 1950-Article
226- The Code of Criminal Procedure,
1973 - Sections 265-G & 427(1)
-
Petitioner convicted in six cases on the
same
date
ands
sentenced
for
imprisonment of one years six months in
each case, leading to his incarceration of
nine years in jail- Trial court not exercised
the discretion under Section 427 Cr. P.C-
In absence of no direction for running the
sentences
concurrently
the
petitioner