2006 Supreme(SC) 697

2006(5) Supreme 938
SUPREME COURT OF INDIA
(From Allahabad High Court)
G.P. Mathur and R.V. Raveendran, JJ.
Munney @ Rahat Jan Khan — Appellant
versus
State of U.P. — Respondent
Criminal Appeal No. 165 of 2003
Decided on 3-8-2006
Counsel for the Parties :
For the Appellant : Shakeel Ahmed, Advocate.
For the Respondent : Prashant Choudhary, Anuvrat Sharma and Praveen Swarup, Advocates.

IMPORTANT POINT
When presence on spot of eye witnesses was very natural, mere fact that they did not belong to same “mohalla” could not be a ground to discard their testimony.

Headnote:Indian Penal Code, 1860 — Sections 302/34 and 307/34 — Appellant with other two accused tried for offences under and convicted — Father of deceased PW1 had got evicted one accused from a property in execution of decree — On the date of incident all three accused surrounded deceased when PWs 1, 2 and 3 were present in the property — Accused gave a big dagger blow in abdomen of deceased who fell down and other two accused also then assaulted him — Accused also fired at PW2 gun shots but he escaped — Conviction challenged on ground that PW2 was younger brother of deceased and PW3 was his brother-in-law and thus they were highly interested — While hearing appeal under Article 136 of the Constitution of India — Court will normally not enter reappraisal or review of evidence unless trial Court and High Court was shown to have committed on error of law or procedure and conclusions were perverse — Presence of witnesses on spot was natural and mere fact that they did not belong to same "mohalla” could not be a ground to discard their testimony — Eye witnesses account was completely corroborated by medical evidence — Lodging of FIR within 25 minutes of occurrence wherein name of all three eye witnesses were mentioned provided complete assurance to prosecuted case — Conviction was not liable to be interfered with.

       Held : The house belonged to Abdul Gaffar Querreshi and there is nothing unnatural if his two sons, namely, the deceased Iqbal Farooq Ahmad and PW-2 Abrar Ahmad @ Raju went to see the same as the house had been locked and no body was living there. Similarly, the presence at the spot of PW-1 Mohammad Zaman Khan is also very natural as he was the supurdgar and moveable properties had been given in his custody and thus he was responsible for their safety. Therefore, the presence on the spot of the three eye witnesses examined by the prosecution is very natural and the mere fact that they do not belong to the same mohalla cannot be a ground to discard their testimony. Both PW-1 Mohammad Zaman Khan and PW-3 Fasih Uddin are residents of same police station Ganj in the city of Rampur and consequently their houses would not be at a great distance from the place of occurrence.(Para 7)

       The eye witnesses account find complete corroboration from the medical evidence. It may be noted that in the FIR, which was very promptly lodged within 25 minutes of the occurrence at 9.10 a.m., it was mentioned that intestines of the deceased had come out, which fact is also noted in the post mortem report while describing injury number 6. The lodging of a prompt FIR within 25 minutes of the occurrence wherein names of all the three eye witnesses were also mentioned coupled with the fact that the Investigating Officer reached the place of occurrence at 10.00 a.m. lend complete assurance to the prosecution case. Nothing has come out in the cross-examination of the witnesses, which may throw even a slightest doubt upon the veracity of the prosecution version of the incident.(Para 8)

       (ii) U.P. Children Act, 1951 — Section 2(4) — Child — A person under age of 16 years — Appellant was convicted for murder by judgment dt. 26-2-1980 and incident was on 11-11-1978 — Juvenile Justice Act came into force in 1986 — U.P. Act afforded protection to a child but accused when examined u/s 313 Cr.P.C., gave his age as 18 years and was studying in class XII — On his own showing he was nearly 17 years at the time of occurrence — No plea that he was a child was taken during trial or in appeal before High Court — Appellant could not be said to be a child and was not entitled to benefit or protection of U.P. Children Act.

       Held : Learned counsel has lastly submitted that the appellant Munney @ Rahat Jan Khan was less than sixteen years of age and as such he was entitled to the benefit of Juvenile Justice Act, 1986. It may be mentioned here that the incident in question took place on 11.11.1978 and the learned First Additional Sessions Judge convicted the appellant by judgment and order dated 26.2.1980. The Juvenile Justice Act came into force in 1986. At the relevant time Uttar Pradesh Children Act, 1951 was applicable. This Act afforded protection to a child and the definition of child under Section 2(4) of the said Act said that a child means a person under the age of sixteen years. The statement of the appellant under Section 313 Cr.P.C. was recorded on 19.1.1980, i.e., nearly 14 months after the occurrence wherein he gave his age as 18 years and further stated that he was studying in Class XII. Thus on his own showing he was nearly 17 years of age at the time of occurrence. No plea regarding the fact that the appellant was a child within the meaning of Uttar Pradesh Children Act, 1951 was taken either during the course of his trial or in appeal before the High Court. If the appellant was a child such a plea would have certainly been taken at the earliest possible opportunity at the initial stage when he was arrested or in the trial. We are clearly of the opinion that the appellant was not a child at the time of commission of the offence and he was not entitled to the benefit or protection of the Uttar Pradesh Children Act, 1951.(Para 10)