Judgement

SEN, J. :- This appeal by special leave-directed against the judgment of the Allahabad High Court dated April 26, 145 upholding the judgment and sentence passed by the learned Additional Sessions Judge, Kanpur dated July 11, 1977 raises the question whether the appellant was a child as defined in S. 2(4) of the U.P. Children Act, 1952 and therefore was entitled to the benefit of S. 29 of the Act. The point was not taken in the High Court nor was there any such plea raised during the trial. This was a case of triple murder. The appellant along with his ten companions was convicted by the learned Additional Sessions Judge under S. 302 read with S. 149 of the Indian Penal Code, 1860 for having committed the murders of the deceased Basdeo, Anant Ram and Mahabir in furtherance of the common object of the unlawful assembly and they were each sentenced to undergo rigorous imprisonment for life. The Court has granted special leave to the appellant Vinod Kumar alone and dismissed the special leave petitions filed by the other accused.

2. In this appeal, the appellant sought special leave mainly on two grounds, namely : (1) The High Court was not justified in dismissing the appeals before it without hearing learned counsel appearing for the accused on the ground that the Court was satisfied that the appeals ought to be allowed. And (2) The trial of the appellant Vinod Kumar and the sentence of imprisonment for life awarded upon his conviction under S. 302 were vitiated in view of the decisions of this Court in Jayendra v. State of U.P., (1981) 4 SCC 149: (AIR 1982 SC 685), Umesh Chandra v. State of Rajasthan, (1982) 3 SCR 583 : (AIR 1982 SC 1057) and Gopi Nath Ghosh v. State of West Bengal, (1984) 1 SCR 803 : (AIR 1984 SC 237) as the appellant at the time of the incident was not even 14 years of age, his date of birth being April 18, 1959, and was a child as defined in S. 2(4) of the Act and he ought to have been tried by the special court as required under S. 29 and his trial by the Court of Session was bad in law.

3. We have heard Shri Dharam Pal Singh, learned counsel for the appellant at quite some length. It was stated that the only question raised at the stage of grant of special leave, which again was the solitary point urged by him before us, was that the appellant was a child within the meaning of S. 2(4) of the Act at the time of the occurrence and therefore entitled to the benefit of S. 29. The learned counsel made a statement at the bar that the other point was not pressed at the hearing of the special leave petitions, namely, that the High Court did not give a hearing to the appellant and the other accused.

4. Normally, it would seem unnecessary to state the facts of the case in detail as they may not be germane to the issue now sought to be raised, namely, that the High Court was not justified in dismissing the appeal preferred by the accused without giving them a hearing. But in the facts and circumstances of the present case, we think it necessary to do so. The facts brought out in the prosecution case clearly show that the appellant not only led the assault but also played a prominent role which resulted in the gruesome triple murder and it is incredible that he was a child at the time of the incident. The incident which led to the triple murder appears to be calculated. preplanned and ruthlessly executed.

5. Briefly stated, the facts disclosed by the evidence of the prosecution are that there were two rival factions in village Pania Mau, one led by the deceased Basdeo to which the other dead persons Anant Ram and Mahabir belonged, and the other of which the appellant Vinod Kumar and his ten companions were members, and the relations between them were extremely strained. It appears from the prosecution evidence that this ghastly incident took place on the morning of August 20, 1973 on the banks of a tank lying on the western outskirts of the village abadi which is used by the village people for purposes of bathin