Keepu @ Kuldeep Singh v. The State

I have heard Sri M.S. Pal, learned Sr. Adv. appearing on behalf of the applicant/appellants and Sri Harish Pujari, learned A.G.A. for the State and perused the record. In annexure no. 1 of the affidavit descriptions of the appellant Keepu, have been given and in column no. 8, which stands in regard to the date of birth, the year of birth of this applicant has been shown as 1971. Similarly, in annexure no. 2 the year of birth of applicant Anchu Singh is shown as 1970. In annexure no.3 according to school leaving certificate the date of birth of this applicant, namely, Karnail Singh, has been shown as 25.10.1971. The State has also filed a counter affidavit and alongwith the counter affidavit the State has filed certificate of D.S. Kanyal, Village Panchayat Development Officer, Raipur and extract of family register, Village panchayat, Raipur after making verification of applicant/appellant Keepu Singh, Anchu Singh and Karnail Singh which are annexed as annexure nos. 1,2,3,4,5 & 6 respectively. In the counter affidavit it is stated that the State, on its own behalf, has verified the facts above and has admitted the averments mentioned in the affidavit filed by the applicant/appellant Karnail Singh and accordingly has stated, on oath, that the year of birth of appellant Keepu @ Kuldeep Singh is 1971, the year of birth of appellant Anchu Singh is 1970 and year of birth of appellant Karnail is 1971. Keeping in view the above facts and circumstances, the application is allowed. The applicant/appellants are permitted to adduce additional evidence as provided u/s 391 Cr.P.C.. Let the additional documentary evidence, as discussed above be taken on record. The application is disposed of accordingly. NCM: (Dharam Veer, J.) THE HIGH COURT OF UTTARAKHAND AT NAINITAL. (Court’s order whether the case is or not approved for reporting) (Chapter VIII Rule 32 (2) (b) Description of the Case Crl. Appeal No. 356 of 2001 (Old no.2987/1986) Keepu @ Kuldeep Singh & others. … Appellants Vs. State … Respondent Approved for Reporting. __________________ Not approved for reporting Date of Decision 10th March, 2008. Initial of Judge. ------------------ --------- Reserve d Judgment HIGH COURT OF UTTARAKHAND AT NAINITAL Criminal Appeal no. 356 of 2001 (Old no. 2987 of 1986)

#1. Keepu @ Kuldeep Singh, 2. Burha Singh, Both sons of Prem Singh, 3. Karnail Singh S/o Bachan Singh, 4. Harbansh Singh S/o Tota Singh, 5. Fauji S/o Kartar Singh, 6. Anchu S/o Prem Singh, All R/o Arjunpur, P.S. Rudrapur, District Nainital (Now Udham Singh Nagar). --------- Accused / appellants. Versus The State. --------- Respondent Sri M.S. Pal, Sr. Counsel assisted by D.N. Sharma, Adv. Sri V.S. Pal Adv. for the appellant nos. 1,3,4 & 6, Smt. Pushpa Joshi, Adv. for appellant no. 5. Sri Harish Pujari, learned Addl. Govt. Advocate for the State. Dated: March 10, 2008 Hon’ble Dharam Veer, J. This appeal preferred u/s 374(2) of The Code of Criminal Procedure, 1973 (hereinafter referred to as the Cr.P.C.) is directed against the judgment and order dated 5th November 1986 passed by the II Addl. Sessions Judge, Nainital in Sessions Trial no. 84 of 1984 State vs. Keepu and others whereby the learned II Addl. Sessions Judge has convicted the appellant/accused persons Keepu alias Kuldeep Singh, Burha Singh, Karnail Singh, Harbansh Singh and Fauji for the offences punishable u/s 147 of The Indian Penal Code, 1860 (hereinafter referred to as the I.P.C.) and sentenced each accused to undergo one year’s rigorous imprisonment and to pay fine to the tune of Rs.500/-. In default of payment of fine, each accused shall have to undergo one month’s simple imprisonment. Again the accused persons Keepu @ Kuldeep Singh, Burha Singh, Karnail Singh, Harbansh Singh and Fauji were convicted for the offence punishable u/s 307 read with Section 149 I.P.C. and have been sentenced to undergo rigorous imprisonment for 4 years and a fine to the tune of Rs. 1,000/- each. In default of payment of fine, each accused shall have to undergo two months’ simple imprisonment. The appellant/accused Anchu is convicted for the offence punishable u/s 148 I.P.C. and sentenced to undergo two years’ rigorous imprisonment and further he is convicted for the offence punishable u/s 307 I.P.C. and sentenced to undergo rigorous imprisonment for seven year.

#2. In brief, the prosecution case is this that P.W.-1 Surjan Singh has lodged a First Information Report to the Police Station Rudrapur on 23.07.1983 at about 1:10 p.m. with the allegations that on 23.07.1983 at about 10:30-10:45 a.m. he alongwith his son P.W. 2 Makhan Singh, injured, Sinder Singh, Minder Singh, Labh Singh and his daughter Km. Deep Kaur were planting paddy in the field of Lal Singh. In the meantime, due to the old enmity in regard to a field, the accused persons Anchu, Keepu, Burha Singh sons of Prem Singh alongwith Bareet Singh S/o Nihal Singh, Karnail Singh S/o Bachan Singh, Harbansh Singh S/o Tota Singh, Harbansh Singh S/o Ram Singh and Fauji S/o Kartar Singh had arrived on the field and have started beating Makhan Singh with Lathi and Danda. When his son Makhan Singh started running away from the scene for shelter then the accused Anchu Singh had fired with country made pistol and Makhan Singh received fire arm injuries. One Labh Singh and both the son-daughter of the informant made alarm and after hearing the noise, so many people working in the nearby fields reached at the place of occurrence and the assailants ran away form the place of incident. The informant admitted his son in the hospital at Rudrapur for treatment. With the same allegations the informant Surjan Singh has lodged a report in the Police Station and on the basis of the oral report, the Chik First Information Report Ext. Ka-1 was prepared by Head Moharir Chandra Kiran. Distance of the place of occurrence from police station is shown about 8 Kms. An entry was made in the General Diary, a copy of which is Ext. Ka-6.

#3. The injured Makhan Singh was medically examined by Dr. M.N. Joshi, Medical Officer J.L.N. Hospital, Rudrapur on 23.07.1983 at 12:30 p.m. who also prepared injury report. The injury report is marked as Ext. Ka-7. A supplementary medical report was also prepared by the Medical Officer, J.L.N. Hospital, Rudrapur, that supplementary report is Ext. Ka-8 on the record.

#4. The investigation of the case was entrusted to P.W.3 S.S.I. Sri J.P.Singh. During the course of the investigation the Investigation Officer recorded statements of the witnesses and prepared a site-plan of the place of occurrence, which is Ext. Ka-2 on the record. The Investigating Officer S.S.I. Sri J.P. Singh, during the course of investigation, has also taken in his possession the bloodstained clay, plain clay & tooth and a Fard in this regard was prepared which is Ext. Ka-3 in the first information report the informant has alleged that the offence was committed by as many as 8 assailants. But the Investigating Officer after completing investigation, has filed charge sheet on 17.09.1983 against the accused/ appellants Keepu, Burha Singh, Karnail Singh, Harbansh Singh S/o Tota Singh and Fauji for the offence punishable u/s 147,148,149,324,325,307 I.P.C. The I.O. has also filed a separate charge sheet on 21.03.1984 against the accused/appellants Aanchu under the similar Sections of the I.P.C. The charge sheets are Ext. Ka-4 and Ka-5 respectively on the record.

#5. Learned Chief Judicial Magistrate, Nainital on receipt of the charge sheet, after giving necessary copies to the accused as required u/s 207 Cr.P.C., committed the case to the Court of Sessions for trial on 26.05.1984 u/s 209 Cr.P.C.

#6. The learned Sessions Judge, Nainital has transferred the Sessions Trial to the Court of II Addl. Sessions Judge, Nainital for hearing and disposal in accordance with law. Learned II Addl. Sessions Judge, Nainital after hearing the parties on

10.05.1985 framed the charge of offence punishable u/s 148, 307 I.P.C. against the accused/appellant Anchu. On the same day the accused/appellants Keepu @ Kuldeep Singh, Burha Singh, Karnail Singh, Harbans Singh and Fauji were charged for the offence punishable u/s 147, 307 read with Section 149 I.P.C. The charges were read over and explained to the accused persons who pleaded not guilty and claimed to be tried.

#7. The prosecution, to prove its case, has examined P.W. 1 Surjan Singh, complainant/ eye-witness, P.W.2 Makhan Singh, injured witness and P.W.3 S.I. J.P. Singh, Investigating Officer of the case.

#8. The oral and documentary evidence was put to the accused persons in the form of questions u/s 313 Cr.P.C. who, in reply, denied the allegations made against them and have stated that they have been falsely implicated in the case due to the enmity.

#9. After appreciating all the evidence available on record and hearing upon learned counsel for the parties, the learned II Addl. Sessions Judge, Nainital vide impugned judgment and order dated 5th Nov. 1986 has convicted the appellant/accused persons Keepu alias Kuldeep Singh, Burha Singh, Karnail Sing, Harbash Singh and Fauji for the offences punishable u/s 147 I.P.C. and sentenced each accused to undergo one year’s rigorous imprisonment and to pay fine to the tune of Rs. 500/-. In default of payment of fine, each accused shall have to undergo one month’s simple imprisonment. Again the accused persons Keepu @ Kuldeep Singh, Burha Singh, Karnail Singh, Harbansh Singh and Fauji were convicted the offence punishable u/s 307 read with Section 149 I.P.C. and have been sentenced to undergo rigorous imprisonment for 4 years and a fine to the tune of Rs. 1,000/- each. In default of payment of fine, each accused shall have to undergo two months’ simple imprisonment. The appellant/accused Anchu is convicted for the offence punishable u/s 148 I.P.C. and sentenced to undergo two years’ rigorous imprisonment and further he is convicted for the offence punishable u/s 307 I.P.C. and sentenced to undergo rigorous imprisonment for seven year. Aggrieved with the impugned judgment and order the accused/appellants have preferred the present appeal.

#10. I have heard Sri M.S. Pal, learned Senior Counsel assisted by Sri D.N. Sharma Adv., learned counsel for the accused/appellant nos. 1,3,4,6, Smt. Pushpa Joshi, learned counsel for accused/appellant no. 5 and Sri Harish Pujari, learned Addl. Govt. Advocate for the State.

#11. The injured Makhan Singh was medically examined by the Medical Officer J.L.N. Hospital, Rudrapur on 23.07.1983 at 12:30 p.m. who also prepared injury report Ext. Ka-7. Before further discussion, it is pertinent to mention the injuries found in the person of the injured Makhan Singh which are reproduced as under:-

#1. Transverse lacerated wound 6cm. X ½ cm. X bone deep fresh oozing,

#2. Transverse lacerated wound 4cm. X ½ cm. X bone deep oozing present,

#3. Transverse lacerated wound 2 cm. Away right angle of mouth- 2cm. X ½ cm. X muscle deep. Oozing,

#4. Lacerated wound starting from mid of right lower lip, oblique by downwards upto lower border of Mandible (Right side) X bone deep. Mandible clinically X-Ray advised),

#5. Both upper and lower lips swollen (contusion) Red bleeding present. Mouth Upper left canine all incisors. All other teeth of upper jaw missing (right side),

#6. Upper and lower left eye lids swollen (black eye) blue in colour. Conjunctral heamorrhage,

#7. Lacerated wound (obliquely transverse) Left thinner region. Margins chard and tattooing. 3 cm. X 2 cm. probe can be paned about 1-½ cm. X- X-Ray advised,

#8. Multiple abrasions with blackening at top all over left forearm. Swelling all over the palm. Dorsom of left hand. Left forearm,

#9. Multiple abrasions on flexor part of the left upper arm just above the elbow point. Fresh oozing tops of abrasions blackish, 10.Multiple abrasions on the left side of abdomen just lateral to the unbelicus. Fresh oozing.

#12. In the opinion of the doctor, the injuries nos. 1 to 6 were caused by blunt object and the injuries nos. 7 to 10 were caused by fire arm. The injury no. 4 was found to be grievous in nature. The injuries nos. 7 to 10 were kept under observation.

#13. A supplementary medical report was also prepared by the Medical Officer, which is Ext. Ka-8 on the record. The doctor has given the following report:- Injury no. 7 under observation. Wide X-Ray Plate no. 23.7.83 shows Lower end of left ulna no callus seen. A radio opaque shadow seen at mid of left forearm. Injury no. 4 for which X-Ray was advised shows that body of mandible right side no callus seen- most of the teeth of right side maxilla absent.

#14. In the opinion of the doctor, the injury no.7 and 4 were grievous in nature and injury no. 7 is confirmed firearm injury. Foreign body left as such.

#15. The genuineness of both these papers i.e. Ext. Ka- 7 and Ext. Ka-8 are admitted by the counsel of accused/appellants.

#16. The prosecution to prove its case, first of all, has examined P.W.1 Surjan Singh who is the eye witness of the incident and complainant of this case. His statements were recorded before the Court on

01.07.1986. In his examination- in-chief this witness has stated that the incident was said to have been taken place about three years’ back and it was about 11:00 a.m. when he alongwith his son (the injured) Makhan Singh, Minder Singh and her daughter Km. Deep Kaur were planting paddy in the field of Lal Singh of Bindukhera. His other son Chhinder Singh was with them. At this very moment the accused/appellant Anchu, Keepu, Burha Singh, Harbansh Singh, Bareet Singh, Karnail Singh, Fauji carrying Lathies in their hands came there and had started beating to his son Makhan Singh with Lathies and Danda. When they tried to save, they were threatened by the assailants to shot at. The accused Anchu had also fired with country made pistol which caused injuries to Makhan Singh. In the meantime on hearing the shrieks, the persons working in the nearby fields, reached at the place of occurrence and the assailants ran away from the scene. He had taken his son- Makhan Singh to the Govt. Hospital Rudrapur and admitted him there. Thereafter he has lodged First Information Report in the Police Station and on the basis of oral report the Chik report Ext. Ka-1 was prepared, which was signed by him. It is further stated that all the accused/assailants were known to him before this incident. This witness was cross examined by the defence counsel but nothing has come out in his cross examination which may create doubt in his statements. The evidence of this witness on every aspect is reliable, believable and trustworthy.

#17. P.W.2 is the injured eye witness Makhan Singh who was examined in the Court on 01.07.1986. This witness has deposed that the incident was taken place about quarter to three years’ back. The incident had taken place at about 10:30- 10:45 a.m. He had gone to Bindukhera to plant paddy in the field of Lal Singh. Minder Singh, Chhinder Singh and his sister were with him. His father was also reached in the field. In the meanwhile the assailants Anchu, Keepu, Bareet Singh, Harbansh Singh, Fauji, Burha Singh, Karnail Singh and another Harbansh Singh had reached at the field armed with Lathies and Dandas and have started beating him. This witness had tried to save himself and started to run. In this process he ran 10-15 steps ahead but the accused Anchu had fired at him, which hit him and he received injuries of the fire arm. His father was also present when the mar-pit was taken place. Due to the said mar-pit his teeth were broken down and his left hand was fractured. This witness has further deposed that his father took him to the hospital where he was medically examined. It is stated that the assailants were known to him before the incident. This witness was also cross examined by the defence counsel but nothing has come out in his evidence which may create doubt in his Statements. The evidence of this witness is reliable, believable and trustworthy.

#18. P.W.-3 is S.I. J.P. Singh-I.O. who has stated that the Investigation of this case was entrusted to him and during the course of investigation he recorded the statements of the witnesses and after making spot inspection he prepared a site- plan of the place of occurrence. That site plan is Ext. Ka-2 on the record. Besides it he had taken in his possession the bloodstained clay, plane clay and a tooth from the place of occurrence and sealed them. A Fard in this regard was prepared which is Ext. Ka.3 on the record. After completing the investigation, he filed charge sheet against the accused Keepu, Burha Singh and others on 17.09.1983 and 21.03.1984. The charge sheets are Ext. Ka-4 and Ka-5 on the record. The Chik report Ext. Ka-1 was prepared by Head Moharir Chandra Kiran who has made entries in the G.D. a copy of which is Ext. Ka-6.

#19. The oral and documentary evidence was put to the accused persons in the form of questions u/s 313 Cr.P.C. who, in reply, denied the allegations made against them and have stated that they have been falsely implicated in the case due to the enmity. The accused/appellants did not produce any oral or documentary evidence in their defence.

#20. Submission of the learned counsel for the appellants is this that as per the evidence produced by the prosecution, the prosecution has failed to prove its case beyond reasonable doubt against the accused/ appellants. But the prosecution has produced the evidence of the eye-witness as well as the evidence of the injured witness. P.W.2 Makhan Singh, injured eye witness in his evidence has deposed that the incident had taken place at about 10:30-10:45 a.m. He had gone to Bindukhera to plant paddy in the field of Lal Singh. Minder Singh, Chhinder Singh and his sister were with him. His father was also reached in the field. Meanwhile, the assailants Anchu, Keepu, Bareet Singh, Harbansh Singh, Fauji, Burha Singh, Karnail Singh and another Harbansh Singh had reached at the field armed with Lathies and Dandas and have started beating him. This witness has tried to save himself and started to run. In this process he ran 10-15 steps ahead but the accused Anchu had fired at him which hit him and he received injuries with the fire arm. His father was also present when the mar-pit was taken place. Due to the said mar-pit his teeth were broken down and his left hand was fractured. This witness has further deposed that his father took him to the hospital where he was medically examined. It is stated that the assailants were known to him before the incident. This witness is the injured and his evidence is quite natural and cogent. This witness has expressed the entire episode before the Court below step-by- step. Thus, the evidence of P.W.2 Makhan Singh cannot be doubted. The testimony of the injured witness is fully corroborated with the evidence of other witness i.e. P.W.1 Surjan Singh who was present at the time, date and place of occurrence. The prosecution has produced evidence of P.W.1 Surjan Singh, the eye- witness, who has also stated that the incident was taken place at about three years’ back and it was about 11:00 a.m. when he alongwith his son Makhan Singh, Minder Singh and her daughter Km. Deep Kaur were planting paddy in the field of Lal Singh of Bindukhera. His other son Chhinder Singh was with them. At this moment the accused/appellant Anchu, Keepu, Burha Singh, Harbansh Singh, Bareet Singh, Karnail Singh, Fauji carrying Lathies in their hands came there and had started beating to his son Makhan Singh, they were threatened by the assailants to shoot at. It is stated that the accused Anchu had fired with country made pistol which caused injuries to Makhan Singh. The persons working in the nearby fields reached at the place of occurrence and the assailants ran away from the scene. This witness had taken his son- Makhan Singh to the Govt. Hospital Rudrapur and admitted him there. Thereafter this witness has lodged First Information Report in the Police Station Rudrapur.

#21. The evidence of P.W.1 and P.W.2 is further gets corroboration with the injury report of injured Makhan Singh prepared by the Medical Officer which illustrate that as many as 10 injuries were found on the person of the injured Makhan Singh on the said date and time. The doctor has further opined that the injuries nos. 1 to 6 were cussed by blunt object and the injuries nos. 7 to 10 were caused by firearm. The doctor has opined that the injuries nos. 4 and 7 were grievous in nature and the injury no.7 is confirmed firearm injury.

#22. From the material available on record and the evidence discussed above; the prosecution has proved its case beyond reasonable doubt that on 23 rd July 1983 at about 10:45 a.m. in jungle village Bindukhera within the Police Station Rudrapur accused/appellant Anchu was a member of an unlawful assembly and in prosecution of the common object of such assembly caused bodily injuries to Makhan Singh and committed the offence of rioting and on that date, time and place the accused/appellant Anchu was armed with deadly weapon i.e. the country made pistol and inflicted gun shot injuries to Makhan Singh with such intention, knowledge and under such circumstances that if by that act he has caused the death of Makhan Singh, he would have been guilty of murder. Similarly, from the material available on record and the evidence discussed above the prosecution has proved its case beyond doubt that on 23rd July 1983 at about 10:45 a.m. in jungle village Bindukhera within the Police Station Rudrapur accused/appellants, namely, Keepu @ Kuldeep Singh, Burha Singh, Karnail Singh, Harbans Singh and Fauji were a member of an unlawful assembly they caused bodily injuries to Makhan Singh and committed the offence of rioting and on that date, time and place, alongwith the accused Anchu, they were a member of an unlawful assembly and in prosecution of the common object of which Anchu inflicted bodily injuries to Makhan Singh by a country made pistol with such intention, knowledge and under such circumstances that the death of Said Makhan Singh could have occurred. In this way the appellant Anchu is guilty for the offence punishable u/s 148, 307 I.P.C. and the rest of the appellants are guilty for the offence punishable u/s 147, 307 read with Section 149 I.P.C. The learned II Addl. Sessions Judge has rightly convicted the accused appellants as mentioned above. The judgment and order dated 05.11.1986 passed by the learned II Add. Sessions Judge is justified and correct as per the discussions above which does not warrant interference at this stage.

#23. Sri M.S. Pal, learned Sr. Counsel for the appellants has also submitted that the conviction of the appellants on the basis of the above said evidence as recorded by the trial court is justified and he does not want to challenge the conviction part of the appellants Keepu @ Kuldeep Singh, Anchu and Karnail Singh. He has confined his argument only up to the point of sentence. Learned Sr. Counsel Sri M.S. pal has submitted that the date of birth of appellant, namely Keepu @ Kuldeep Singh is 1971 and at the time of the incident i.e. on

23.07.1983 he was aged about 12 years’, thus, the appellant was child. The date of birth of applicant/appellant, namely Anchu Singh is 1970 and at the time of the incident i.e. on

23.07.1983 he was aged about 13 years’, thus, the appellant was child. Similarly, the date of birth of applicant/appellant, namely, Karnail Singh is

25.10.1971 and at the time of incident i.e. on

23.07.1983 he was aged about 11 years’ 9 moths, therefore, the appellant was child. In support of his arguments he has filed three documents as annexure nos. 1,2, & 3 of the affidavit. Annexure no.1 is the photocopy of the family register issued by Gram Panchayat Vikas Adhikari, Gram Panchayat, Raipur. Annexure no. 2 is the photocopy of the family register issued by the Gram Panchayat Vikas Adhikari, Gram Panchayat, Raipur and the Annexure no. 3 is the photocopy of the School Leaving Certificate issued by Principal, Primary School, Amarpur, Vikas Khand Gadarpur, Udham Singh Nagar. The State is in agreement with the version of learned Sr. Counsel for the appellants and in the counter affidavit filed by S.I. Jagpal Singh it is stated that the State, on its own behalf, has verified the facts above and has admitted the averments mentioned in the affidavit filed by the applicant/appellants and accordingly has stated, on oath, that the year of birth of appellant Keepu @ Kuldeep Singh is 1971, the year of birth of appellant Anchu Singh is 1970 and year of birth of appellant Karnail is 1970. Learned Sr. counsel for the appellants has argued that on the date of occurrence i.e. on 23.07.1983 the appellants Anchu, Keepu @ Kuldeep Singh and Karnail were child and they are entitled to be benefited of provisions of the U.P. Children Act, 1951 (U.P. Act No.1 of 1952)

#24. Learned counsel for the appellants further submitted that the provisions of the U.P. Children Act, 1951 (U.P. Act No.1 of 1952) were applicable in the said area and also in the said district where the crime was committed. Under the U.P. Children Act, 1951, “child” has been defined u/s 2(4) which reads as under:- 2(4) “child” means a person under the age of sixteen years.

#25. Learned counsel for the appellants further submitted that since the accused/appellants Anchu, Keepu @ Kuldeep Singh and Karnail were child on the date of incident, hence they are entitled for the benefit of U.P. Children Act, 1951. He has relied on the judgment of Hon’ble Apex Court in the case of Bhoop Ram v. State of U.P. reported in 1989 SCC (Cri) 486. He has referred Para 8 of the said judgment which reads as under:-

#8. Since the appellant is now aged more that 28 years of age, there is no question of the appellant now being sent to an approved school under the U.P. Children Act for being detained there. In a somewhat similar situation, this Court held in Jayendra Vs. State of U.P. that where an accused had been wrongly sentenced to imprisonment instead of being treated as a “child” under Section 2(4) of the U.P. Children Act and sent to an approved school and the accused had crossed the maximum age of detention in an approved school viz. 18 years, the course to be followed is to sustain the conviction but however quash the sentence imposed on the accused and direct his release forthwith. Accordingly, in that case also, we sustain the conviction of the appellant under all the charges framed against him but however quash the sentence awarded to him and direct his release forthwith. The appeal is therefore partly allowed insofar as the sentence imposed upon the appellant are quashed.”

#26. Learned counsel for the accused/appellant also placed reliance on the judgment of Hon’ble Apex Court in the case of Pradeep Kumar v. State of U.P. reported in 1993 All.L.J. 1362. He has relied on Para 4 of the said judgment which is reproduced as under:-

#4. Since the appellants are now aged more than 30 years, there is no question of sending them to an approved school under the U.P. Children Act for detention. Accordingly, while sustaining the conviction of the appellants under all the charges framed against them, we quash the sentences awarded to them and direct their release forthwith. The appeals are partly allowed in the above terms.

#27. Learned counsel for the appellants further placed reliance on the judgment of Hon’ble Apex Court in the case of Upendra Kumar v. State of Bihar reported in (2005) 3 SCC

#592. He has relied on Para 5 of the said judgment which is also reproduced as under:-

#5. The course this Court adopted in Gopinath Ghosh case as also in Bhola Bhagat case was to sustain the conviction but, at the same time, quash the sentence awarded to the convict. In the present case, at this distant time, the question of referring the appellant to the Juvenile Board does not arise. Following the aforesaid decisions, we would sustain the conviction of the appellant for the offences for which he has been found guilty by the Court of Sessions, as affirmed by the High Court, at the same the sentence awarded to the appellant is quashed and the appeal is allowed to this extent. Resultantly, the appellant is directed to be released forthwith if not required in any other case. however, time,

#28. For the reasons as discussed above, the appeal of the appellants Anchu, Keepu @ Kuldeep and Karnail Singh is partly allowed. Conviction of the appellant Anchu for the offence punishable u/s 148,307 I.P.C. and the conviction of the appellants Keepu @ Kuldeep Singh and Karnail Singh for the offence punishable u/s 147, 307 read with Section 149 I.P.C. is affirmed. Thus, being a child on the date of commission of crime, the sentence as awarded by learned II Additional Sessions Judge, Nainital to the appellant Anchu for 2 years R.I. u/s 148 I.P.C. and 7 years R.I. u/s 307 I.P.C. is set-aside, similarly being the child the sentence awarded to appellants Keepu @ Kuldeep Singh and Karnail Singh for 1 year’s R.I. u/s 147 I.P.C. and a fine of Rs. 500/- each and in default of payment of fine one month’s simple imprisonment and 4 year’s R.I. u/s 307 read with section 149 I.P.C. and the fine to the tune of Rs. 1,000/- each and in default of payment of fine two months’ simple imprisonment is set aside, following the Apex Court judgments in case of Bhoop Ram, Pradeep Kumar and Upendra Kumar (Supra). The appellants are on bail. They need not surrender their bail bonds are hereby cancelled.

#29. After this appeal was received by transfer from Allahabad High Court for its disposal under Section 35 of U.P. Reorganization Act 2000, this Court on

24.07.2003 issued notices against the appellants. As per the report sent by the Chief Judicial Magistrate, Udham Singh Nagar dated 13.08.2003 the appellant, namely, Burha Singh is reported to be died, hence the appeal preferred by appellant Burha Singh stands abated.

#30. The conviction and sentence awarded by the learned II Addl. Sessions Judge to the accused/appellants Fauji and Harbansh Singh S/o Tota Singh for the offence punishable u/s 147, 307 read with Section 149 I.P.C. is upheld. The period already spent by the appellants Fauji and Harbansh Singh S/o Tota Singh in jail shall be commuted out of the sentence awarded by the Court below after verifying from the record.

#31. Let a copy of this judgment, alongwith the record of the Court below be sent to the Sessions Judge, Nainital to make accused/appellants Fauji and Harbansh Singh to serve out the sentence awarded by the Trial Court. (Dharam Veer, J.) NCM: