# Ved Prakash & Ors v. State

- **Citation:** (2024) 5 ILRA 53
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2024-05-27
- **Case number:** Criminal Appeal No. 261 of 1982
- **Bench:** Siddhartha Varma, Vinod Diwakar
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/ved-prakash-ors-v-state-52138
- **Pages:** 7

## Headnote

Criminal Law-Indian Penal Code-1860Sections-34, 302 - Juvenile Justice Care &
Protection of Children Act, 2000-Section
15-Criminal
appeal
against
judgment
of
conviction U/s 302/34 IPC- No error in the eyewitness account which had been rendered by the
P.W. - 2. It mattered little that P.W. - 3 who had
claimed that the accused had made an extrajudicial confession had turned hostile or whether
the brother of the deceased who was allegedly
there on the spot has not appeared as a witnessMinor discrepancies in the St.ment of an eyewitness would not make much difference- As far
as the sentence is concerned, the appellant no. 2
was a juvenile at the time of incident, he would
be governed by the provisions of Section 15 of
the Act of 2000- Appellant No.2 was released on
bail way back in the year 1982 and ever since
then he has never misused the liberty of bail
therefore Rs 20,000/- fine imposed upon him
which shall be equally distributed between the
surviving heirs and legal representatives of the
deceased.

Appeal dismissed. (E-15)

List of Cases cited:

2020 (10) SCC 555 : Satya Deo @ Bhoorey Vs
St. of U. P.

## Text

5 All. Ved Prakash & Ors. Vs. State
53
acquittal
of
the
accused-respondents,
namely, Pyare Singh and Chhotku, is
consequently, reversed.

65. Both the accused-respondents,
namely, Pyare Singh and Chhoktu are
accordingly convicted for the offence under
Sections 147 and 302/149 I.P.C. and
sentenced
to
two
years
rigorous
imprisonment for the offence under Section
147 I.P.C. and life imprisonment for the
offence under Section 302/149 I.P.C., like
accused-appellants,
who
have
been
convicted and sentenced by the trial court
under the impugned judgment.

66. The Government Appeal filed on
behalf of the State is, hereby, allowed.

67. There shall be no order as to costs.

68 The Chief Judicial Magistrate,
Gorakhpur shall ensure that both the
accused-respondents are arrested and sent to
jail for serving their sentences awarded
herein above.

69. Let a copy of this judgment be sent
to the Chief Judicial Magistrate, Gorakhpur,
henceforth, for necessary compliance.
----------
(2024) 5 ILRA 53
APPELLATE JURISDICTION
CRIMINAL SIDE
DATED: ALLAHABAD 27.05.2024

BEFORE

THE HON'BLE SIDDHARTHA VARMA, J.
THE HON'BLE VINOD DIWAKAR, J.

Criminal Appeal No. 261 of 1982

Ved Prakash & Ors. ...Appellants
Versus
State ...Opposite Party
Counsel for the Appellants:
Sri Virendra Singh, Ms. Aarushi Khare (A.C.)

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

Criminal Law-Indian Penal Code-1860Sections-34, 302 - Juvenile Justice Care &
Protection of Children Act, 2000-Section
15-Criminal
appeal
against
judgment
of
conviction U/s 302/34 IPC- No error in the eyewitness account which had been rendered by the
P.W. - 2. It mattered little that P.W. - 3 who had
claimed that the accused had made an extrajudicial confession had turned hostile or whether
the brother of the deceased who was allegedly
there on the spot has not appeared as a witnessMinor discrepancies in the St.ment of an eyewitness would not make much difference- As far
as the sentence is concerned, the appellant no. 2
was a juvenile at the time of incident, he would
be governed by the provisions of Section 15 of
the Act of 2000- Appellant No.2 was released on
bail way back in the year 1982 and ever since
then he has never misused the liberty of bail
therefore Rs 20,000/- fine imposed upon him
which shall be equally distributed between the
surviving heirs and legal representatives of the
deceased.

Appeal dismissed. (E-15)

List of Cases cited:

2020 (10) SCC 555 : Satya Deo @ Bhoorey Vs
St. of U. P.

(Delivered by Hon'ble Siddhartha Varma, J.
&
Hon'ble Vinod Diwakar, J.)

1. Upon an incident having taken place
on 18.4.1981 whereby Shyam Singh had
died, a first information report was got
lodged by his wife - Kailashpati. The first
information report had stated that the
brother of Shyam Singh, namely, Balveer
Singh accompanied by his four sons,
namely, Vijayvir Singh alias Vijay, Ved
54 INDIAN LAW REPORTS ALLAHABAD SERIES
Prakash, Chandra Prakash alias Pappu and
Rajesh alias Raju and the brother-in-law of
Balveer, namely, Surendra (sala) had
reached the house of the deceased. The
motive assigned in the first information
report was that the deceased Shyam Singh
had executed a Will in favour of his three
daughters and, therefore, the accused
Balveer Singh and his four sons wanted to
do away with him. In the first information
report, it was very categorically stated that
the four sons of Balveer Singh and his
brother-in-law were armed with lathis and
swords. Specifically, it has been stated that
Chandra Prakash, Rajesh alias Raju, Ved
Prakash had swords whereas Balveer Singh
and Surendra had lathis in their hands. At the
time of the incident, another brother of the
deceased, namely, Kripal Singh had reached
the spot. Apart from the brother, Dharmveer
Singh son of Chiranjeet Chauhan and
Bhagwana Singh son of Kathera Singh had
also reached at the place of incident. The
first information report states that not only
there were three eye-witnesses present but
many others of the area had also reached the
spot. The first informant in the first
information report had stated that the first
information report was written on the
dictation of the first informant by her
daughter - Vimla.

2. After the lodging of the first
information report, the Police got into action
and various relevant materials found on the
spot were recovered and kept in Police
custody. The accused Chandra Prakash, it
was alleged, had also made a confessional
statement before the Police on 18.4.1981
itself and had also under Section 27 of the
Evidence Act got recovered the sword as
was used in the incident. The sword was
recovered in the presence of two eyewitnesses, namely, Ram Singh and Ashok
Kumar Tyagi.

3.

Upon
completion
of
the
investigation, the Police submitted its
charge sheet and the court of sessions,
thereafter, on 3.8.1981 framed charges
against the accused Shyam Singh, Chandra
Prakash alias Pappu, Ved Prakash, Balveer
Singh, Rajesh alias Raja and Surendra
Singh.

4. When the trial commenced, from the
side of the prosecution 7 prosecution
witnesses were produced and examined.

5. Upon the conclusion of the Trial, the
IIIrd Additional Sessions Judge, Bijnor,
convicted the accused, namely, Chandra
Prakash alias Pappu, Ved Prakash and
Rajesh alias Raju for the offences under
Sections 302/34 IPC and they were
thereafter
sentenced
for
rigorous
imprisonment for life. By the same order,
Surendra Singh, Vijayvir Singh and Balveer
Singh were acquitted. Thereafter, the instant
Criminal Appeal was filed challenging the
judgement and order dated 27.1.1982 passed
by the IIIrd Additional Sessions Judge,
Bijnor.

6. The P.W. - 1 who was the doctor
who had conducted the postmortem proved
the port-mortem report and categorically
mentioned as to how the injuries which had
resulted in the death of the deceased had
been inflicted on the body of the deceased.

7. The P.W. - 2 is the wife of the
deceased and she is an eye-witness of the
incident and she gives the entire eye-witness
account saying that the deceased - Shyam
Singh and she herself were sleeping in the
veranda of their house and a functional
lantern was there in the veranda. She had
also stated that in the eastern side of the
veranda,
her
brother-in-law
(dewar),
namely, Kripal Singh was also sleeping. She
5 All. Ved Prakash & Ors. Vs. State
55
has stated that Balveer Singh, the accused,
was her brother-in-law (dewar) and Vijay,
Ved Prakash, Chandra Prakash and Rajesh
were his sons and Surendra was the brotherin-law (sala) of Balveer Singh. She
recognized all the six accused who were
present in the court. She thereafter, in her
testimony, gives the reason for the murder of
her husband. She had stated that because of
the fact that her husband executed a Will in
favour of her daughters, the accused could
not tolerate the transfer of the property in the
name of the daughters and, therefore, the
murder had taken place. She states that when
the six accused entered the place of incident
and when upon hearing certain noises, she
got up, she saw Balveer Singh standing
along with Surendra and Vijai who were
having lathis in their hands. Chandra
Prakash alias Pappu had a sword in his hand.
Ved Prakash and Raju had tabals (a kind of
a sharp edged weapon). Chandra Prakash
alias Pappu had attacked/assailed the
husband of the first informant who was
sleeping. She states that on the injury being
inflicted, the husband of the first informant
got up and stood on the cot himself. When
this happened, the other accused started
hitting the deceased (the husband of the first
informant) by lathis and tabal. She had
stated that when a lot of hue and cry was
created by the first informant then the other
witnesses,
namely,
Kripal
(dewar),
Dharmveer and Bhagwan came on the spot.
She had stated in the statement in chief itself
that Kripal had joined hands with the
accused. She, thereafter, had stated that after
injuries were inflicted and her husband was
killed, the accused ran away from the
southern side. She further states that Abdul
Karim and Rajesh were her servants. A day
before the incident, they had told her that
Balveer and his four sons were saying that
they would get rid of Shyam Singh. She had
stated that the report was got lodged by her
and it was scribed by her daughter on her
dictation. She had stated that whatever she
had dictated was scribed by her daughter. In
the cross-examination which took place, the
P.W. - 2 stood firm with her averments in
the chief.

8. Upon a specific question being put
as to whether, she was accompanied by one
Basant Singh when she went to lodge the
first information report, she denied this
fact but had stated that, in fact, she knew
one
Basanta
Ahir.
In
the
crossexamination, she had also stated that she
woke out of her sleep when her husband
was, in fact, giving calls for being saved.
She denied the fact that she did not know
the actual age of Rajesh alias Pappu. She
denied the fact that he was 13-14 years of
age.

9. The P.W. -3, Rajesh who the first
informant stated had informed a day prior
to the incident that the accused Balveer
Singh was planning to do away with her
husband was declared hostile by the
prosecution.

10. The P.W. - 4, Bhagwan, another
eye-witness, who according to the first
informant had come to the place of incident
upon the hue and cry being made, had also
stated that he saw the entire incident with his
own eyes. He had very categorically stated
that when he had reached the place of
incident beside him, there were Dharmveer
and Kripal also at the place of incident and
no other person was there. He further added
to the statements he had made that after half
and an hour other persons started coming to
the spot.

11. The P.W. - 5 Ram Singh happens
to be a witness who had witnessed the
recovery of the swords.
56 INDIAN LAW REPORTS ALLAHABAD SERIES

12. The P.W. - 6, Ijhar Hussain, is the
constable who had taken the dead-body for
the port-mortem.

13. The P.W. - 7, Dharmveer Singh,
the Investigating Officer, had also proved
the first information report and, thereafter,
had stated that the entire investigation had
been done under his supervision. The
statement of the accused were thereafter
recorded under Section 313 Cr.P.C. In the
statement they had denied having committed
the crime and had also denied their presence
at the place of occurrence.

14. Learned Amicus Curiae for the
appellants Ms. Aarushi Khare made the
following submissions:-

I. The appellants - Ved Prakash
and Chandra Prakash had died and,
therefore, the Appeal had already abated
against them. So far as Rajesh @ Raju is
concerned, she states that at the time of the
incident, he was a juvenile. In fact, she states
that when the Appeal was filed, he had given
out his age as 12 years. When the appeal was
pending, an application was moved on
6.9.2023 for declaring the appellant- Rajesh
@ Raju a juvenile. Thereafter, the Principal
Magistrate of the Juvenile Justice Board
informed this Court by a communication
dated 10.11.2023 that on 6.11.2023 the
appellant - Rajesh @ Raju had been
declared juvenile and that at the time of
incident his age was 12 years 1 month and
18 days. She, therefore, submits that the trial
as was undergone was of a juvenile who was
in conflict with law and therefore it was not
a proper trial. She, however, submits relying
upon a judgement of Supreme Court
reported in 2020 (10) SCC 555 : Satya Deo
alias Bhoorey vs. State of Uttar Pradesh
that in the event a trial had taken place of a
juvenile who was in conflict with law
alongwith other adult persons and at the
stage of Appeal it was discovered that the
appellant - Rajesh @ Raju was a juvenile at
the time of the incident then the provisions
of the Juvenile Justice (Care and Protection
of Children) Act, 2000 (hereinafter referred
to as the "Act of 2000") were to apply. For
that purpose, she relies upon the paragraph
no. 16 of the judgement reported in 2020
(10) SCC 555 which is being reproduced
here as under:-

"16. Further, the provisions of the
2000 Act are to apply as if the juvenile had
been ordered by the Board to be sent to the
special home or institution and ordered to be
kept under protective care under sub section
(2) of Section 16 of the Act. The proviso
states that the State Government or the
Board, for any adequate and special reasons
to be recorded in writing, review the case of
the juvenile in conflict with law who is
undergoing sentence of imprisonment and
who had ceased to be a juvenile on or before
the commencement of the 2000 Act and pass
appropriate orders. However, it is the
Explanation
which
is
of
extreme
significance as it states that in all cases
where a juvenile in conflict with law is
undergoing a sentence of imprisonment on
the date of commencement of the 2000 Act,
the juvenile's case including the issue of
juvenility, shall be deemed to be decided in
terms of clause (1) of Section 2 and other
provisions and Rules made under the 2000
Act irrespective of the fact that the juvenile
had ceased to be a juvenile. Such juvenile
shall be sent to a special home or fit
institution for the remainder period of his
sentence but such sentence shall not exceed
the maximum period provided in Section 15
of the 2000 Act. The statute overrules and
modifies the sentence awarded, even in
decided cases."

and, therefore, she submits that
even if the appellant is to be convicted, if the
5 All. Ved Prakash & Ors. Vs. State
57
appeal is decided against him then he would
be punished as per the Act of 2000.

II. Learned counsel for the
appellant has submitted that a perusal of the
statement of P.W. -2 does not inspire
confidence. She submits that in the first
information report, the P.W. -2 had stated
that she had come out of her sleep because
of certain noises. Subsequently, in her
statement before the Court, she says that
when the husband of the deceased had raised
a hue and cry, then she woke up.

III. Learned counsel for the
appellant further submitted that the motive
which the appellant had given, that the
husband of the first informant had executed
a Will in favour of his daughters and,
therefore, the brother of the deceased had
killed him does not have legs to stand. She
states that when the brother was done away
with, the Will would come into operation.
This would in no manner help the accused
persons. In fact, they stood to lose if the
husband died. The motive as had been
alleged was a weak motive.

IV. Learned counsel for the
appellant states that Kripal, the brother of
the deceased, who had witnessesed the
incident did not appear in the witness box.
Similarly, she states that the eye-witness -
Dharamvir Singh also did not appear in the
witness box. So far as the eye-witness
account of Bhagwana Singh is concerned,
she
submits
that
it
had
various
contradictions. She states that P.W. -2 had
stated that in addition to Kripal, Dharmveer
Singh and Bhagwana Singh, there were
many other persons
of
the
locality
assembled but she states that at the time of
incident only Kripal, Dharamveer Singh and
Bhagwana Singh were there on the spot.

V.
Learned
counsel
further
submits that the extra-judicial confession
with regard to the servant is also not reliable
as out of the two servants only one servant,
namely, Rajesh appeared in the witness box
and he also turned hostile.

VI. Learned counsel for the
appellant states that if the statement of
Bhagwana Singh is looked into, it becomes
clear that in two other cases, namely, in one
case of State vs. Baljeet and in another case
of State v. Battu, he was a police witness
and, therefore, there was every possibility in
this case also that he was appearing as a
police witness.

VII. Learned counsel for the
appellant submits that as per Section 24 of
the Children Act, 1960 and Section 18 of the
Act of 2000 no joint trial of a juvenile and a
person who was not a juvenile could have
been undergone.

VIII. Learned counsel for the
appellant further submits that the appellant
who was admittedly a juvenile at the time of
incident could not have any mens rea and,
therefore, could not be punished under
Section 302 IPC. He was only acting on the
directions of his father who had actual
control and command over the will and
thinking of the juvenile (minor). A father is
a natural guardian and, therefore, it could
not be said that the appellant was having the
mens rea to commit the murder. She further
submits that the father of the appellant had
in fact been acquitted.

IX. Learned counsel for the
appellant in the end submits that in the event
the appeal is dismissed and the judgement of
conviction is upheld then as per the
judgement of (1981) 4 SCC 149 : Jayendra
and another v. State of Uttar Pradesh and
(2000) 6 SCC 89 : Umesh Singh and
another vs. State of Bihar, the sentence
may be modified and the appellant may not
be sentenced for life. She also states that as
per Section 15 of the Act of 2000, there were
7 methods in which a juvenile could be dealt
with and the appellant who was only about
12 years of age at the time of the incident
58 INDIAN LAW REPORTS ALLAHABAD SERIES
could be given the minimum sentence
possible.

15. Learned Additional Government
Advocate Sri Amit Sinha in opposition has
supported the judgement of the trial court
and had submitted that the P.W. - 2 was a
reliable eye-witness and the account which
she had given could not in any manner be
rejected or doubted.

16. Learned AGA further submits that
even a single eye-witness account which
was reliable, could result in a conviction.

17. Learned AGA further submits that
when the incident was admitted and when
the eye-witness account which was a
reliable one was there on record then
definitely the conviction was the only
conclusion to which the Court could come
to.

18. Learned AGA further submits that
the
appellant
be
given
maximum
punishment as could be given after the
Juvenile Justice Board had held that the
appellant was a minor.

19. Learned AGA submits that the
provisions of Section 24 of the 1960 Act and
Section 18 of the Act of 2000 had no
relevance in the instance case as the trial had
taken place treating the appellant an adult.
He, therefore, submits that those provisions
could not be pressed at this point of time.

20. Having heard learned Amicus
Curiae Ms. Aarushi Khare, this Court is of
the view that the incident which had resulted
in the criminal case being registered and
which was tried by the IIIrd Additional
Sessions Judge, Bijnor was a case where
there was a definite eye-witness account of
P.W. - 2 who was the wife of the deceased.
No perusal of the record or the assessment
of the evidence leads us to conclude that
there was any error in the eye-witness
account which had been rendered by the
P.W. - 2. It mattered little that P.W. - 3
Rajesh who had claimed that the accused
had made an extra-judicial confession had
turned hostile or whether the brother of the
deceased Kripal who was allegedly there on
the spot has not appeared as a witness even
though there were minor discrepancies in
the statement of P.W. - 2 who was an eyewitness would not make much difference.
The fact of the matter remained with the
incident was witness of P.W. - 2 and, there
is no reason to disbelieve her.

21. Under such circumstances, the
Appeal is dismissed vis-a-vis the appellant
no. 2, Rajesh, so far as the conviction
portion is concerned. However, so far as the
sentence is concerned, we are of the view
that when the appellant no. 2 Rajesh Kumar
@ Raju was a juvenile at the time of
incident, he would be governed by the
provisions of Section 15 of the Act of 2000
as per the judgement of Supreme Court
reported in 2020 (10) SCC 555 : Satya Deo
@ Bhoorey vs. State of Uttar Pradesh.

22. Since the incident is of the year
1981, we are of the view that the appellant
Rajesh @ Raju must be now a fairly elderly
person. He was never a criminal before the
incident had occurred and also at the time
when he had committed the crime he was
under the influence of his father and it could
not be said that he was intentionally
committing the crime.

23. We are also of the view that the
appellant Rajesh was released on bail way
back in the year 1982 and ever since then he
5 All. Banwari & Ors. Vs. State of U.P.
59
has never misused the liberty of bail or has
ever jumped the bail.

24. Under such circumstances, we
are of the view that the minimum possible
sentence be imposed upon him. We,
therefore, consider it appropriate to fine
him for Rs. 20,000/- which shall be
equally distributed between the surviving
heirs and legal representatives of Shyam
Singh.

25. Since the appellants no. 1 and 3
had died during the pendency of the appeal
vis-a-vis them stood abated.

26. For the hard work which has been
put in by the learned Amicus Curiae Ms.
Aarushi Khare, we quantify her fee as Rs.
30,000/- which shall be payable to her by
the Legal Services Authority forthwith.
The payment be got done under the
supervision of the Registrar General of
this court.
----------
(2024) 5 ILRA 59
APPELLATE JURISDICTION
CRIMINAL SIDE
DATED: LUCKNOW 03.05.2024

BEFORE

THE HON'BLE MRS. SANGEETA CHANDRA, J.
THE HON'BLE AJAI KUMAR SRIVASTAVA-I, J.

Criminal Appeal No. 298 of 1990

Banwari & Ors. ...Appellants
Versus
State of U.P. ...Respondents

Counsel for the Appellants:
R. Murtaza, Aishwarya Mishra, Alok Singh,
Altaf Mansoor, Ashok Kumar Singh, K
Jaiswal, Rishad Murtaza, Syed Ali Jafar Rizvi

Counsel for the Respondents:
Criminal Law-Indian Penal Code-1860Sections-147, 149 & 302 - Criminal appeal
against judgment and order of conviction of life
imprisonment- Trial Court has discounted the
various arguments relating to delayed F.I.R.,
discrepancies in the St.ments of the alleged two
eye witnesses, discrepancy in the recording of
the inquest report and the F.I.R., the discrepancy
in Medical and ocular evidence, the unnatural
behaviour of the witnesses, who are close
relatives of the deceased.

No blood was found in the grove of where the
dead body was lying, or at the place on the road
where the deceased was hit by gunshot fired by
accused- Reasonable suspicion about exact place
of occurrence of the incident-Presence of P.W.-1
and P.W.-2, at the place of occurrence to be
doubtful and their testimonies to be unreliableFalse implication of cannot be ruled out because
of a subsequently developed story of existence of
prior enmity between the parties- It is quite
unnatural that a person whose paternal cousin
was attacked in front of his own eyes would be
so meticulous and farsighted as to take a file
cover along with him to keep the plain piece of
paper so that it is not creased at all while
submitting his report at the Police Station-ResultImpugned judgment set aside.

Appeal allowed. (E-15)

List of Cases referred-;

1. Tulia Kali Vs St. of T N, (1972) 3 SCC 393

2. Dahari & ors.Vs St. of U P (2012) 10 SCC 256

3. Periyasamy Vs St., rep. by the Inspector of
Police, 2024 SCC OnLine SC 314

4. Darshan Singh Vs St. of Pun. (2024) 3 SCC
164

5. Md Jabbar Ali & ors. Vs St. of Assam 2022
SCC OnLine SC 1440

6. Mahendra Singh & ors. Vs St. of M. P. (2022)
7 SCC 157

7. Khema alias Khem Chandra & ors. Vs St. of
U.P., (2023) 10 SCC 451