# Raju alias Rajendra (In Jail) v. The State of U.P

- **Citation:** (2019) 2 ILRA 11
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2019-09-03
- **Case number:** Criminal Appeal No. 1938 of 1993
- **Bench:** Manoj Misra, Anil Kumar -Ix
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/raju-alias-rajendra-in-jail-v-the-state-of-u-p-44563
- **Pages:** 19

## Headnote

A. Indian Penal Code, 1860 - Section 302
and Code of criminal procedure 1973 -
Section 313 - the statement of the accused
- convicted for offence punishable under
Section 302 IPC - sentenced to undergo
imprisonment for life.- The motive for the
crime disclosed in the FIR-some altercation
had taken place between the accused and
the deceased at the time of marriage in the
house-statement of the appellant recorded
under Section 313 CrPC, wherein he had
disclosed his age as about 18 years, to raise
a claim for the benefit of juvenility-
conviction of the appellant under Section
302 IPC is upheld-the punishment awarded
to the appellant by the court below is set
aside. (Para 3, 11 ,32 & 51)

The postmortem report established that there
were two incised wounds, cavity deep, on the
body of the deceased - the witnesses have
proved the place of occurrence; the time of
occurrence; and the source of light at the time
of incident - prosecution thus succeeded in
not only proving the act of crime by the
appellant but also the motive for the crime by
disclosing that on 29.04.1990 there had been
altercation between the deceased and the
accused in connection with which threats were
extended. (Para 19, 20 & 26)

B. Juvenile Justice (Care and Protection
of Children) Act, 2015 - proviso to subsection (2) of Section 9- claim of
juvenility can be raised at any stage
including the appellate stage -enables
raising of a claim before any court even
after final disposal of the case and such a
claim is to be determined in accordance
with the provisions contained in the Act
and the Rules made there under even if
the person has ceased to be a child on or
before the date of commencement of the
Act- held- appellant was 15 years 5
months and 25 days old at the time of
the incident, as per the report of Juvenile
Justice Board, Agra. (Para 44 ,45 & 49)

Criminal Appeal partly allowed (E-7)

List of Cases Cited: -

## Text

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2 All. Raju alias Rajendra Vs The State of U.P.
11
(2019)10ILR A 11

APPELLATE JURISDICTION
CRIMINAL SIDE
DATED: ALLAHABAD 03.09.2019

BEFORE

THE HON'BLE MANOJ MISRA, J.
THE HON'BLE ANIL KUMAR -IX, J.

Criminal Appeal No. 1938 of 1993

Raju alias Rajendra ...Appellant (In Jail)
Versus
The State of U.P. ...Opposite Party

Counsel for the Appellant:
Sri V.K. Chaturvedi, Sri Anita Singh, Sri
Prem Babu Verma.

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

A. Indian Penal Code, 1860 - Section 302
and Code of criminal procedure 1973 -
Section 313 - the statement of the accused
- convicted for offence punishable under
Section 302 IPC - sentenced to undergo
imprisonment for life.- The motive for the
crime disclosed in the FIR-some altercation
had taken place between the accused and
the deceased at the time of marriage in the
house-statement of the appellant recorded
under Section 313 CrPC, wherein he had
disclosed his age as about 18 years, to raise
a claim for the benefit of juvenility-
conviction of the appellant under Section
302 IPC is upheld-the punishment awarded
to the appellant by the court below is set
aside. (Para 3, 11 ,32 & 51)

The postmortem report established that there
were two incised wounds, cavity deep, on the
body of the deceased - the witnesses have
proved the place of occurrence; the time of
occurrence; and the source of light at the time
of incident - prosecution thus succeeded in
not only proving the act of crime by the
appellant but also the motive for the crime by
disclosing that on 29.04.1990 there had been
altercation between the deceased and the
accused in connection with which threats were
extended. (Para 19, 20 & 26)

B. Juvenile Justice (Care and Protection
of Children) Act, 2015 - proviso to subsection (2) of Section 9- claim of
juvenility can be raised at any stage
including the appellate stage -enables
raising of a claim before any court even
after final disposal of the case and such a
claim is to be determined in accordance
with the provisions contained in the Act
and the Rules made there under even if
the person has ceased to be a child on or
before the date of commencement of the
Act- held- appellant was 15 years 5
months and 25 days old at the time of
the incident, as per the report of Juvenile
Justice Board, Agra. (Para 44 ,45 & 49)

Criminal Appeal partly allowed (E-7)

List of Cases Cited: -

1. Sanjeev Kumar Gupta Vs St. of U.P. (2015)
11 SCC 69

2. Amit Vs St. of U.P. (2012) 4 SCC 107

3. Govindaraju alias Govinda Vs St. (2012) 4
SCC 722

4. Jitendra Singh alias Babbu Singh Vs St. of
U.P. (2013) 11 SCC 193

(Delivered by Hon'ble Manoj Misra, J.)

1. This appeal has been filed against
the judgment and order dated 03.11.1993
passed by the 5th Additional Sessions
Judge, Agra in S.T. No.299 of 1990 (State
Vs. Raju alias Rajendra) whereby the
appellant Raju @ Rajendra has been
convicted for offence punishable under
Section 302 IPC and has been sentenced
to undergo imprisonment for life.

2. The facts giving rise to the appeal
are as under:
12 INDIAN LAW REPORTS ALLAHABAD SERIES

3. Lala Ram (PW-1) father of
Mukesh
(the
deceased)
lodged
first
information report (FIR) on 01.05.1990 at
11.30 pm (Case Crime No.48 of 1990) at
P.S. Madan Mohan Gate, District Agra,
alleging that, at about 10 pm, when the
informant was inside his house and his son
Mukesh (the deceased) and his younger
brother Nand Kishor (PW-3) were sleeping
at the door of the house, he heard cries;
upon which, he rushed to the spot and saw
Raju alias Rajendra son of Gauri Shanker
(the appellant) running away in the lane,
just in front of his house, with a blood
stained knife in his hand and his son
Mukesh (the deceased) lying injured and
under the care of informant's brother Nand
Kishor (PW-3) and neighbour Jaggo Lal
(PW-2). The incident was allegedly
witnessed in the light of a bulb lit just
outside informant's house. The FIR further
alleges that Nand Kishor (PW-3) and
Jaggo Lal (PW-2) informed the informant
that Raju (the appellant) had assaulted
Mukesh (the deceased) with knife and ran
away. FIR also alleges that upon hearing
cries, informant's son Dilip (not examined)
and other neighbours including Bangali
son of Babu Ram (not examined) arrived at
the spot. It is alleged that they all took the
deceased to the emergency ward where the
doctor declared him dead. The motive for
the crime disclosed in the FIR was that on
29.04.1990 some altercation had taken
place between the accused and the
deceased at the time of marriage in the
house of Taro Maharaj (not examined) in
connection with which the accused had
threatened the deceased. Thereafter, a day
before the incident also, Raju (appellant)
had come with boys of the locality and had
extended threats to Mukesh (the deceased).
In the first information report it was stated
that the body of Mukesh (deceased) was
lying at S.N. Hospital.

4. Upon lodging of the FIR, the
police swung into action. After preparing
the inquest report at the hospital, on
02.05.1990, blood soaked earth was taken
from the spot; portion of the blood stained
cot was collected; blood stained pillow
and pillow cover was collected; and, on
04.05.1990, recovery of blood stained
knife was made on the pointing out of the
accused. The postmortem report revealed
two incised wounds. One on the upper
region of the chest and the other on the
stomach region. As per report, death was
caused due to shock and haemorrhage as a
result of anti mortem injuries. The
postmortem was conducted on 02.05.1990
at 2.30 pm and as per the doctor's opinion,
the death could have occurred about half a
day before. After conducting investigation
charge sheet was submitted and the case
was committed to the court of sessions.
Charge
of
an
offence
of
murder
punishable under Section 302 IPC was
framed against the accused-appellant who
pleaded not guilty.

5. In the trial, three eye witnesses of
the incident were examined, namely, Lala
Ram (PW-1); Jaggo Lal (PW-2) and Nand
Kishor (PW-3). PW-1 - Lala Ram
reiterated what was stated in the first
information report and disclosed about
existence of light at the time of incident.
He also stated that the first information
report was scribed by his son-in-law Vijay
(PW-4) on his dictation and, thereafter,
lodged at the police station. He proved the
first information report which was marked
Exhibit
1.
He
disclosed
that,
on
29.04.1990, at the time of marriage in the
locality,
there
had
been
altercation
between Mukesh (the deceased) and Raju
(the
appellant)
and,
though,
upon
intervention, on that day, the situation was
calmed down but, on the next day as well
2 All. Raju alias Rajendra Vs The State of U.P.
13
as on the third day, Raju (the appellant)
had extended threat of life to the
deceased. In his cross examination, he
disclosed that his house stood in the name
of his father and that he has an electricity
connection as well as an electricity meter.
He stated that when he came out upon
hearing the cries, he saw Raju (the
appellant) running away in the lane. He
also disclosed that, on that day, Mukesh
(the deceased) had eaten his food between
4 pm & 5 pm. He stated that Mukesh used
to sleep outside at the door of the house
where there was a bulb and just below it,
Mukesh's (deceased's) cot was there. He
denied the suggestion that there was no
light or that he had no valid electricity
connection. He stated that in Taro's
daughter's wedding, he was present. He
stated that Raju (the appellant) had been
demanding money from his younger son
Raju (not examined) though he was not
aware as to for what purpose money was
being demanded. Upon suggestion that
money
was
being
demanded
in
connection with betel shop dues, he stated
that the appellant - Raju does not have a
betel shop though his father Gauri has
one. He denied the suggestion that his son
Raju (not examined) had betel shop dues
payable. He stated that in the altercation
that had taken place during marriage, he
had intervened. He denied the suggestion
that the incident had occurred under the
influence of liquor. He denied the
suggestion that somebody else had
inflicted knife injury to his son. He also
denied the suggestion that he had made
false implication on account of enmity.

6. PW-2 - Jaggo Lal stated that in
the night of the incident, he was sleeping
at the Chabutra just outside his house and
near him, the deceased (Mukesh) and
Nand Kishor were sleeping. He stated that
upon hearing cries, he and Nand Kishor
woke up and saw Raju alias Rajendra (the
appellant) inflicting knife blow on the
stomach of the deceased (Mukesh). He
stated that on hearing cries, Dilip (not
examined) and Lala Ram (PW-1) had
arrived. He stated that Mukesh raised
alarm when he was inflicted knife blow
on the neck and thereafter second knife
blow was inflicted on the stomach. He
stated that he saw Raju alias Rajendra (the
appellant) inflicting knife blow in the
light of a bulb, which was lit just outside
the house of PW-1 (Lala Ram). He also
stated that after inflicting knife blows,
Raju ran away with the knife. In his cross
examination, PW-2 stated that his house
is situated just in front of the house of
Lala Ram (PW-1) and, in between, there
is a narrow lane about four hands wide.
He stated that in front of his house, there
is a Chabutra which is just 2 paces from
his house and this Chabutra is about 3
paces wide and 3 paces long. He stated
that he was lying on the Chabutra with no
cot laid there. He stated that his feet were
towards the house of Lala Ram. He stated
that Mukesh (the deceased) was sleeping
on the cot placed in the lane just in front
of his house. He disclosed that the bulb
was placed just above the door on the wall
of the house though he was not aware
about the wattage of the bulb. He stated
that Lala Ram is his neighbour and not a
relative. He denied the suggestion that he
was sleeping at the time of the incident.
He stated that, in fact, he was awake. He
stated that at the Chabutara, he was alone
and there was no one else. He denied the
suggestion that at the Chabutara Nand
Kishor was sleeping. He stated that Nand
Kishor's cot was just adjacent to the cot of
the deceased (Mukesh), which was just 2
paces away from the wall of the house of
Lala Ram. He also stated that Raju's
14 INDIAN LAW REPORTS ALLAHABAD SERIES
house is just 10-11 paces away. He also
disclosed that next to the house of Lala
Ram, there are houses of Bangali and
Ninnu. He stated that upon hearing the
noise, members of the locality also
arrived but before that, Raju had escaped.
He disclosed that he had not gone to the
hospital with Mukesh (the deceased). He
denied the suggestion that he was cousin
of Lala Ram. He denied the suggestion
that he had not seen the incident.

7. PW-3 -Nand Kishor stated that on
the night of the incident, he was sleeping
in a cot just next to the cot of the
deceased. Near them, his neighbour Jaggo
Lal (PW2) was also sleeping. He stated
that he woke up on hearing the cry of
Mukesh. He saw Gauri's son Raju alias
Rajendra (the appellant) inflicting knife
blow on Mukesh. He saw Raju inflicting
knife
blow
around
the
neck
and,
thereafter, second knife blow on the
stomach region. He stated that upon
hearing the noise, his brother Lala Ram
(PW-1), Dilip, Jaggo Lal (PW-2) and
Bangali had arrived. He stated that he saw
the appellant Raju in the light of bulb
which was lit at the door of Lala Ram's
house. He stated that there was also a bulb
in the lane. He stated that there was
sufficient light. He stated that after
inflicting knife blows, the accusedappellant had escaped. He stated that
Mukesh was thereafter rushed to the
emergency ward of the hospital where he
was declared dead. He narrated the
incident that occurred during the course of
marriage of Taro Maharaj's daughter. He
stated that in that incident, there was an
altercation between the accused - Raju
and the deceased-Mukesh. He stated that
2-3 days later, Raju (the appellant) had
extended threat of life to the deceased. In
his cross examination, he disclosed that
his cot lay just next to the cot of Mukesh
(the deceased) and that the Chabutra of
Jaggo Lal is just 3-4 paces away from
where the cots were. He stated that Jaggo
Lal was sleeping on the floor of his
Chabutra. He stated that Lala Ram is his
real brother and he resides in the same
house. He stated that in the lane, there is
tiled house of Bangali, which is just about
8 paces away, where also there was a bulb
lit on the night of the incident. He stated
that there was another bulb at the door of
Lala Ram. He stated that he was not
aware about the wattage of those two
bulbs. Upon being questioned as to who
pays for the electricity bill, he stated that
the electricity bill is paid by his brother.
He denied the suggestion that there was
no electricity connection in the house. He
also denied the suggestion that there was
no electricity bulb at the place. He stated
that upon hearing the commotion and
seeing people come, Raju escaped and
could not be apprehended on the spot. He
stated that he did not go to the hospital
with Mukesh. He denied the suggestion
that he had not witnessed the incident and
was giving testimony only because he was
brother of Lala Ram.

8. PW-4- Vijay Singh, son-in-law of
the informant (Lala Ram), deposed that he
was the person who scribed the FIR on
the dictation of his father-in-law Lala
Ram. He stated that he had arrived at the
emergency ward of the hospital. He
proved the written report, which was
marked
exhibit-1.
He
denied
the
suggestion that the report was prepared as
per the suggestion of the Inspector.

9. PW-5- Sri O.P. Kalra, Sub
Inspector. He stated that on the date when
the first information report was lodged, he
was S.O., P.S. Madan Mohan Gate, Agra;
2 All. Raju alias Rajendra Vs The State of U.P.
15
that the case was registered at the police
station in his presence; and he had
investigated the matter. He stated that he
had visited the spot and prepared site plan
(Ex-3). He proved the inquest memo (Ex2). He stated that he collected blood
soiled earth as well as blood stained
pillow and blood stained cot, which were
marked exhibits 4 to 6. He stated that
members of the public had arrested Raju
on 04.05.1990 and on his pointing out, he
had recovered blood stained knife of
which Fard (Ex-7) was prepared. He
proved preparation and submission of the
charge sheet (Ex-9). In nutshell he proved
the various steps taken during the course
of investigation.

10. PW-6 -Dr. R.K. Yadav proved that
the postmortem was conducted on 02.05.1990
at 2.30 pm. He proved the postmortem report
(Ex-12) . He stated that there were two antimortem injuries. One was incised wound 2
cm x 0.5 cm x cavity deep on the left side
chest and the other was incised wound 2 cm x
0.5 cm x cavity deep on the left side of
stomach just 9 cm above from navel region at
11 O'clock position. He stated that upon
internal examination, left lung membrane and
lung
were
found
ruptured.
Likewise,
membrane of stomach was also found
ruptured with blood in the cavity. He stated
that the death was on account of shock and
haemorrhage. He stated that the injuries were
sufficient to cause death in ordinary course.
He stated that he could not tell with certainty
as to when death could have occurred. He,
however, stated that the deceased might have
had his meals about 6-8 hours before his
death. He stated that according to the medical
college/police record, the deceased was
brought to the hospital at 10.50 pm.

11. After closure of prosecution
evidence, the statement of the accusedappellant under Section 313 Cr.P.C. was
recorded
in
which
he
denied
the
prosecution case and claimed that he has
been falsely implicated on account of
enmity.

12. The trial court after assessing the
evidence led before it came to the
conclusion that the prosecution was
successful in establishing the guilt of the
accused
beyond
doubt;
that
the
prosecution case was supported not only
by the family members of the deceased,
whose presence on the spot was natural,
but also by the testimony of an
independent witness, namely, Jaggo Lal,
who was just few paces away from the
place of the incident at the time of
occurrence and who deposed that in the
light of a bulb he saw the accused
inflicting knife blows on the deceased.
The trial court found that the spot where
the incident occurred was duly proved by
material exhibits such as blood soaked
earth; blood drenched cot; and the site
plan
prepared
by
the
Investigating
Officer. The trial court found that the
prosecution case was consistent with the
medical evidence which disclosed that the
deceased had sustained incised wound
injuries on the upper region of the chest
and
stomach.
Hence,
it
recorded
conviction of the appellant for the offence
punishable under section 302 IPC.

13. After convicting the accused, the
trial court heard the accused on the
question of sentence and upon finding that
the accused had been convicted for an
offence punishable under Section 302
IPC, awarded life sentence.

14. We have heard Ms. Anita Singh
for the appellant; and Sri Deepak Mishra,
learned A.G.A., for the State.
16 INDIAN LAW REPORTS ALLAHABAD SERIES

15. The learned counsel for the
appellant urged that the prosecution was
not successful in establishing the guilt of
the appellant for the following reasons:-
(a) that the incident occurred in the
darkness of the night when, admittedly,
the
witnesses
were
sleeping
and,
according to their own claim, they woke
up on hearing cries and, therefore, it
cannot be said that they saw as to who
inflicted the injuries that caused the death
of the deceased; (b) that the source of
light at the place of occurrence was not
duly established as no document was
produced to prove that informant's house
had an electricity connection in respect of
which electricity bills were paid; (c) that
the alleged recovery of the assault weapon
(knife) was not proved, inasmuch as, the
knife was not produced in court as a
material exhibit and, otherwise also, the
witness of the recovery other than the
Investigating Officer was not examined;
(d) that several other persons, who are
stated to have arrived at the spot upon
hearing commotion, were not produced by
the prosecution; (e) that the motive shown
for the alleged crime was not strong
enough to warrant an act of murder; and
(f) that the Panch witnesses were not
examined.

16. Per contra, Sri Deepak Mishra,
learned A.G.A., submitted that the place
of the incident was duly proved by the
witnesses of fact as well as by the
Investigating Officer who had visited the
spot and had collected the blood soaked
earth; pieces of blood drenched cot; blood
drenched pillow; and blood drenched
pillow cover and had also prepared a site
plan showing that the incident had
occurred just
at
the door of the
informant's house where the deceased was
sleeping in a cot next to the cot of his
uncle (PW-3) and in front of the Chabutra
of Jaggo Lal (PW-2) who had also
witnessed the incident. He stated that the
distance between the place where the
deceased was sleeping and the place
where Jaggo Lal (PW-2) was sleeping
was hardly three paces and, therefore, as
there were two knife blows inflicted, it
was very much possible that upon victim's
cry, on receipt of the first knife blow, the
other two persons, who were sleeping in
close proximity, would wake up and
witness infliction of the second knife
blow. He submitted that since PW-2 is an
independent witness and he disclosed that
he was at the spot when the incident
occurred and had seen the accused
inflicting knife blow, there is no reason to
disbelieve his testimony and, otherwise
also, the evidence led by the prosecution
is
consistent
and
unblemished.
He
submitted
that
merely
because
the
material exhibit (knife) was not produced
in court it would not render the
prosecution case unbelievable as it was
based on ocular evidence which was
unblemished and consistent with the
medical
evidence.
He,
therefore,
submitted that the appellant has rightly
been convicted.

17. We have carefully perused the
record and have considered the rival
submissions.

18. Upon perusal of the record, we
find that by producing material exhibits
such as blood soaked earth; plain earth,
blood stained pieces of cot; blood stained
pillow cover; blood stained pillow; and
oral evidence of the eyewitnesses as well
as the investigation officer, who had also
prepared the site plan, in absence of
suggestion that the incident occurred at
some other place, it was fully established
2 All. Raju alias Rajendra Vs The State of U.P.
17
that the occurrence was at the door of the
house of the informant which was situated
just in front of the Chabutra of Jaggo Lal
(PW-2) at a distance of just about three
paces.

19.

The
postmortem
report
established that there were two incised
wounds, cavity deep, on the body of the
deceased. One was on the left side chest
region and the other was on the left side
of stomach region. Nothing abnormal was
detected with respect to Larynx, Pharynx,
Trachea and Oesophagus. Thus, it could
be assumed that, upon receipt of first
incised wound on the chest, the deceased
was in a position to raise alarm. Under the
circumstances, it was probable that upon
infliction of the first wound, the deceased
raised an alarm which woke up the other
two persons, sleeping nearby, to witness
the incident. The postmortem was duly
proved by the doctor who appeared as
PW-6. He stated that he conducted the
postmortem on 02.05.1990, at 2.30 pm.
He also proved that from the medical
college /police record it appears that the
deceased was brought to the hospital at
10.50 pm on 01.05.1990. He stated that
the deceased could have had his food 6-8
hours before he was inflicted injuries
which matches with the statement of PW1, who, in his cross examination, had
stated that the deceased must have had his
food in between 4 pm and 5 pm. The
lodging of the FIR was duly proved by
PW-1 (Lala Ram); the investigation,
preparation of the Panchnama; collection
of blood soaked earth; plain earth; pillow;
pieces of blood drenched cot were duly
proved by PW-5 (Investigating Officer)
who also proved the preparation of site
plan. The inquest was conducted at the
hospital at about 11.30 pm which was
proved by the Investigating Officer (PW5) and was marked exhibit Ka-2. He
disclosed that the information on the basis
of which inquest was conducted was
received from Lala Ram. Although there
is overwriting in the digits "11.30" but the
digits are also written in the brackets as
23.30 over which there is no overwriting.

20. From the above evidence, the
place; the time of occurrence; and the
lodging of the first information report is
duly established. As the first information
report had come into existence at the time
of inquest, which was conducted at about
11.30 pm (night), it is clear that the first
information report was promptly lodged
as is established from the chik FIR which
has been proved by the Investigating
Officer.

21. Once the place and time of the
occurrence has been proved, we have to
examine the reliability of the testimony of
the eye witnesses to find out whether they
have
truthfully
deposed
about
the
incident.

22. From the statement of PW-1 it
appears that he was inside the house and
upon hearing cries he rushed outside to
find out his son lying injured on the cot
and the appellant-Raju running away with
a blood stained knife in his hand. He
proved the presence of his neighbour
Jaggo Lal (PW-2); and his brother Nand
Kishor (PW-3) at the place of occurrence.
He proved the existence of the source of
light by stating that at the door of his
house, there was a bulb lit. He stated that
in the light of that bulb as also other
bulbs, he could see what he saw. He
stated that he had rushed his son to the
emergency ward of the hospital where the
doctors declared him dead. He disclosed
about the time of the incident as between
18 INDIAN LAW REPORTS ALLAHABAD SERIES
10 pm and 10.15 pm. He stated that the
first information report was scribed at the
hospital by his son-in-law Vijay (PW-4)
upon his instruction. He also disclosed
about the motive for the crime by stating
that, on 29.04.1990, in a marriage
procession, there had been an altercation
between Mukesh (the deceased) and Raju
(the appellant) and that in connection
therewith, threats were extended to the
deceased by the accused-appellant. In his
cross examination, on a question put to
him with regards to the existence of
source of light, he stated that there existed
a bulb and that he had a valid electricity
connection. No question or suggestion
was put to him that there was no supply of
electricity in the locality where the
incident
took
place.
In
his
cross
examination, PW-1 refuted the suggestion
that he had not seen the incident. On the
basis of his deposition, even if we hold
that PW-1 did not see the actual infliction
of injuries, he is reliable and trustworthy
in so far as his statement relates to the
motive for the crime; the time and place
of occurrence; and as to the presence of
the other two witnesses on the spot.

23. In so far as PW-2 - Jaggo Lal is
concerned, he stated that on the date of
the incident in between 10 pm to 10.15
pm he was lying at the Chabutra of his
house, just in front of the place where the
deceased (Mukesh) and Nand Kishor
were sleeping. He stated that he heard a
cry/shriek, upon which, he woke up and
saw Raju (the appellant) inflicting a knife
blow on the stomach of the deceased. He
stated that upon hearing the commotion,
Dilip; Lala Ram; and other neighbours
also arrived. He stated that the deceased
cried on being inflicted with wound on
the neck region and thereafter wound was
inflicted in the stomach region. He stated
that
he
saw
the
accused-appellant
inflicting knife injury in the light of the
bulb. He stated that there was a bulb lit at
the outer wall of the house of Lala Ram
and Nand Kishor. He stated that after
inflicting knife injury, Raju (appellant)
ran away towards his house. In his cross
examination, he stated that his house is
just in front of the house of Lala Ram
(informant) and, in between, there is a
four hands wide lane (Gali). He stated that
in front of his house, just two paces away,
there is his Chabutara which is about
three paces wide and three paces long. He
stated that he was lying on this Chabutara
at the time of the incident. He stated that
when he was lying there, his feet were
towards the house of Lala Ram; and
Mukesh (the deceased) was sleeping on a
cot in the lane which was in between the
two houses. He stated that the bulb lit was
fixed on a holder which was on the wall
of Lala Ram. He denied the suggestion
that he had any relations with Lala Ram.
We
find
that
he
qualifies
as
an
independent witness whose presence is
disclosed in the FIR also. Further, no
suggestion was made to him that he has
enmity with the accused-appellant. His
testimony has been consistent throughout
and has not been shaken by the cross
examination.

24. PW-3 - Nand Kishor stated that
he was sleeping on a separate cot next to
the deceased and that he saw the accusedappellant inflicting knife blows on the
neck and stomach region of the deceased.
He also disclosed about the existence of
bulb and source of light. He disclosed that
an incident of altercation between Raju
(accused-appellant) and Mukesh (the
deceased) had occurred during the course
of marriage of the daughter of Taro
Mahraj, which took place few days before
2 All. Raju alias Rajendra Vs The State of U.P.
19
the incident. He also disclosed that threat
was extended to the deceased by the
accused-appellant.
In
his
cross
examination, nothing substantial came
out. We are of the view that though he
may be a relative of the informant and as
such an interested witness but his
presence is natural at the spot and is also
proved by independent witness (PW-2).

25. PW-4 -Vijay had disclosed that
he had written the first information report,
which was marked exhibit 1, on the
instruction of his father-in-law (Lala
Ram) given at the hospital. PW-5 - O.P.
Kalra proved conducting of investigation.
He proved the site plan and established
the place of occurrence by proving
recovery of blood soaked earth and plain
earth as also blood stained pillow and
pieces of blood drenched cot which were
exhibited. PW-6 - Dr. R.K. Yadav proved
the postmortem of the deceased and
confirmed existence of two anti mortem
incised
wound
injuries
which
are
consistent with the ocular evidence. He
also proved that from the medical college
/police record it appears that the deceased
was brought there at about 10.50 pm.

26. When we proceed to analyze the
evidence, we find that the witnesses have
proved the place of occurrence; the time
of occurrence; and the source of light at
the time of incident. No suggestion was
put to the witnesses that at the place
where occurrence took place, there was
no supply of electricity or that the
electricity was not being supplied at the
time of occurrence. The existence of bulb
at the wall of the house of the informant is
quite natural. It is also natural that the
bulb remained lit as in summer months, to
ward off heat, house inmates sleep
outside. Moreover there is no suggestion
that the parties were affluent, having the
facility of cooler/ air conditioner etc, and,
therefore would not sleep outside. The
place of occurrence was established by
collection of plain earth and blood soaked
earth as also by collection of pieces of
blood drenched cot and blood stained
pillow. No suggestion was put to Jaggo
Lal (PW-2) that he had any motive to
falsely implicate the accused-appellant.
The testimony of Jaggo Lal is clear and
consistent and it demonstrates that he was
there at the place and time of the
occurrence and he heard cry of the
deceased which invited his attention
towards the deceased to enable him to
witness infliction of knife blow by the
appellant on the stomach of the deceased.
As the injury was not such which severed
vocal chord etc raising of alarm on receipt
of first injury was quite natural thereby
giving sufficient opportunity to the
witnesses to witness infliction of the
second blow even if they were sleeping
when the first blow was inflicted. Further,
the
testimony
of
the
witnesses
is
consistent
with
each
other.
The
prosecution thus succeeded in not only
proving the act of crime by the appellant
but also the motive for the crime by
disclosing that on 29.04.1990 there had
been altercation between the deceased and
the accused in connection with which
threats were extended. The argument of
the learned counsel for the appellant that
the witnesses were sleeping at the time of
incident and could not have witnessed the
incident is not acceptable because there
were two injuries inflicted on the body of
the deceased and therefore it was highly
probable that upon receipt of first blow
the deceased would have raised an alarm
thereby stirring up the persons sleeping
near him to enable them to witness the
second blow, as is the testimony of the
20 INDIAN LAW REPORTS ALLAHABAD SERIES
eye
witnesses
examined
by
the
prosecution.

27. The submission of the learned
counsel for the appellant that the source
of light was not proved as the electricity
connection papers were not proved is also
not acceptable because it is not the case of
the defence that there was no supply of
electricity in the locality. Otherwise, the
existence of the bulb has been established
by oral testimony and is also shown in the
site plan prepared during the course of
investigation. Moreover, Lala Ram (PW1) has also specifically stated that he had
an electricity connection. Under the
circumstances, non proving of electricity
connection papers would not be fatal to
the prosecution case. More so, when an
independent witness has in his testimony
disclosed that an electricity bulb was lit
and nothing has come from his cross
examination to suggest that he had any
motive to falsely implicate the accusedappellant.

28. The contention of the learned
counsel for the appellant that there had
been no production of the recovered knife
before the court and therefore there was a
serious lacuna in the prosecution case
rendering the conviction bad in law is not
acceptable for the reason that it is well
settled
legal
position
that
if
the
prosecution case is established by ocular
evidence, which is reliable and consistent
with the medical evidence, latches on the
part of the investigating agency would not
be sufficient to acquit the accused and
discard the prosecution case which is
otherwise
proved
by
reliable
oral
testimony. In this context, regard be had
to decision of the Apex Court in the case
of Sanjeev Kumar Gupta Vs. State of
U.P.: (2015) 11 SCC 69 wherein it was
held that even if the investigation suffers
from certain flaws such as non-recovery
of the weapon used by the accused
appellants and other material, the entire
prosecution case cannot be brushed aside
when it is proved by ocular evidence and
corroborated
by
medical
evidence.
Similar view has been taken earlier by the
Apex Court in the case of Amit Vs. State
of U.P. (2012) 4 SCC 107.

29. The contention of the learned
counsel for the appellant
that the
prosecution has failed to examine other
witnesses that had arrived on the spot and,
therefore, the benefit must go to the
accused-appellant is also not worthy of
acceptance because it is not the quantity
of the evidence but the quality of the
evidence that is to be considered.
(Govindaraju alias Govinda Vs. State:
(2012) 4 SCC 722). The prosecution had
examined three eye witnesses. First was
the informant, who was a resident of the
same house where the incident occurred.
He deposed about hearing the cry of the
deceased upon receipt of knife blow and
accused-appellant running away with
blood stained knife. The second witness
(PW-2) is a person who was lying on his
Chabutra just few paces away in front of
the place where the deceased was lying.
He disclosed that upon hearing cry from
the deceased, he woke up and saw the
appellant inflicting knife blow on the
stomach region of the deceased. The third
witness (PW-3) is a person who was an
inmate of the same house at the door of
which the deceased slept and the said
witness was sleeping just next to the
deceased. These three witnesses were
consistent in their stand and their presence
at the spot could not be doubted by the
questions put to them in the cross
examination.
2 All. Raju alias Rajendra Vs The State of U.P.
21

30. The submission of the learned
counsel for the appellant that Panch witnesses
were not examined and, therefore, prosecution
failed to prove its case is also worthy of
rejection because the preparation of the Fard
etc. was proved by the Investigating Officer
and no such question was put to him to
suggest that he had not been a witness to its
preparation.

31. In view of the above, we are of the
considered view that the prosecution has
been successful in establishing the guilt of
the accused-appellant beyond the pale of
doubt and that there exists a ring of truth in
the prosecution story, therefore, we uphold
the conviction of the appellant for the offence
punishable under Section 302 IPC.

32. At this stage, the learned counsel
for the appellant invited attention of the
Court to the statement of the appellant
recorded
under
Section
313
CrPC,
wherein he had disclosed his age as about
18 years, to raise a claim for the benefit of
juvenility. It was urged that the previous
bench, upon noticing the said aspect, had
allowed the appellant to set up the plea of
juvenility. In that regard, attention of the
Court
was
invited
to
order
dated
07.03.2017, which is extracted below:-

"Heard Kumari Anita Singh,
learned counsel for the appellant.

It has been submitted by the
learned counsel for the appellant that
since the age of the appellant- Raju @
Rajendra mentioned in his statement
under Section 313 Cr.P.C. is about 18
years, he must have positively been
juvenile on the date of the incident.

Learned
counsel
for
the
appellant prays for and is allowed two
weeks' time to move an application under
Section 7A of the Juvenile Justice (Care
and Protection of Children) Act, 2000.

List this appeal on 30.3.2017."

33. The learned counsel for the
appellant submitted that pursuant to the
above order, an application was filed on
30.03.2017 to decide the appeal of the
appellant as a juvenile in conflict with law.
This application was supported by an
affidavit
in
which
Class-2
Transfer
Certificate of the appellant issued by
Headmistress of Mahatma Gandhi Junior
High School, Agra, disclosing the date of
birth of appellant as 06.11.1974, was
enclosed along with an Election Voter ID
Card disclosing the year of birth of the
appellant as 1974. It was contended that
from the above material it is ascertainable
that on the date of commission of the crime,
that is 01.05.1990, the appellant was below
16 years in age and therefore was entitled to
the benefit of the provisions of Juvenile
Justice Act, 1986 as well as the subsequent
Juvenile Justice (Care and Protection of
Children) Act, 2000.

34. On the aforesaid application, on
17.07.2017, the previous Bench of this
Court had passed the following order:-

"This application u/s 7-A of the
Juvenile Justice (Care and Protection of
Children) Act, 2000 has been filed on
behalf of the appellant Raju @ Rajendra
with the prayer to declare him juvenile in
conflict with law.

The application is supported by
an affidavit of one Pramod Kumar, S/O
Sri Nem Singh, presently posted as SubInspector of police at P.S.- Madan Mohan
Gate, District- Agra.
22 INDIAN LAW REPORTS ALLAHABAD SERIES

It has been submitted by learned
counsel for the appellant that age of the
appellant Raju @ Rajendra mentioned in
his statement recorded u/s 313 Cr.P.C.
was about 18 years. Moreover, it is
apparent from the perusal of the Scholar's
Register & Transfer Certificate issued by
the Principal of Mahatma Gandhi Junior
High School Baah, District- Agra that the
date of birth of the appellant Raju @
Rajendra is 06.11.1974 and hence the
appellant on the date of incident i.e.
01.05.1990, was minor and as such it
should be declared that he was juvenile in
conflict with law on the date of
occurrence.

Per contra Sri J.K. Upadhyay,
learned AGA submitted that the Scholar's
Register & Transfer Certificate of the
appellant Raju @ Rajendra, brought on
record as Annexure No.1 to the affidavit
accompanying the application u/s 7-A of
the Juvenile Justice (Care and Protection
of Children) Act, 2000, upon enquiry was
found to be true.

After
having
heard
the
submissions made by learned counsel for
the parties, we are of the view that the
said issue should be examined by the
concerned Juvenile Justice Board after
giving notice to the complainant.

In view of the above, we remit
this matter to the District & Sessions
Judge, Agra with the direction to him to
refer the appellant's claim for being
declared juvenile in conflict with law to
the Juvenile Justice Board, Agra within a
week from the date of receipt of this order
and the application u/s 7-A of the Juvenile
Justice (Care & Protection of Children)
Act, 2000. He shall further ensure that the
Juvenile Justice Board, Agra adjudicates
upon the appellant's claim for being
declared juvenile in conflict with law
within two months from the date of such
reference after hearing the informant.

The report/ order of the Juvenile
Justice Board, Agra shall be placed
before this Court on the next date fixed.

List this appeal after six weeks.