- (1.) - Originally, there were four accused charged for the murder of the victim Kulwant Singh. The present appellant was one of the four accused. He was charged for the offence under S. 302, Penal Code [the 'IPC'] as well as under S. 307 read with S. 34, IPC. The rest three accused were charged for the offence under S. 302 read with S. 34 as well as under, S. 307 read with S. 34, IPC. Since the victim was only Kulwant Singh for whose death the accused were charged under S. 302, IPC we have not understood the charge framed by the learned Sessions Judge under S. 307, IPC also in connection with the same murder. Nor have we followed the conviction of the present appellant under S. 307 read with S. 34 in addition to his conviction under S. 302 of IPC. It further appears that the High Court has not noticed this anomaly in the convictions and sentences both under S. 302 and S. 307 read with S. 34, of the present appellant. The facts are in a narrow compass and the finding recorded by both the Courts below can hardly be challenged, namely, that it was the appellant who had inflicted the three fatal injuries on the chest of the victim, as a result of which the victim met with his death. We are, therefore, not inclined to interfere with the said finding of fact and the conviction of the appellant under S. 302, IPC. Mr. Sushil Kumar, learned counsel appearing as amicus curiae for the appellant, however, contended that on the date of the incident, i.e. 31st August, 1976, the appellant was below 16 years, his date of birth being 4th May, 1961, as per the school leaving certificate. This certificate was produced in this Court at the time of seeking special leave and the enlargement of the accused on bail. There is no dispute that this certificate states that the appellant-Jagtar Singh was admitted into the school in question on 26th September, 1975 and he left the school while he was reading in the 8th standard. However, mysteriously, the certificate does not mention the name of the school from which the transfer certificate was obtained and on the basis of which certificate the appellant was admitted to the school. It is not disputed that the date of birth which is given in the certificate produced in this Court is based on the date mentioned in the transfer certificate. Since the name of the school from which the transfer certificate is obtained itself is absent from this certificate, no reliance can be placed on the said certificate. This is apart from the fact that there are certain further facts which have been come on the record in this connection.
(2.) It appears that the point with regard to the minority of the appellant was raised at the outset of the trial. Dr. Uppal (PW 1), who had conducted the post mortem examination of the deceased's body, had examined the accused with reference to his age before entering the witness box. In the witness box, he was examined-in-chief with reference to the age of the accused where he deposed that the accused was between 18 and 20 years of age. He has also given his reasons for this opinion of his. It does not appear that he was cross-examined on the said point on behalf of the defence. Thereafter, the accused in his statement under S. 313 of Criminal P. C. took the defence that at the time of the incident, he was 15 years of age. The learned Sessions Judge negatived the said contention and going by the opinion of the doctor held that the accused was of 18 to 20 years of age. It may also be mentioned in this connection that at that stage no school leaving certificate or birth certificate was produced and the matter rested entirely on the statement of the accused under S. 313, Cr. P. C. on the one hand and the expert evidence of the doctor (PW 1) who as stated earlier, was not even cross-examined on the said point, on the other. It appears that at the second stage, the point was raised before the High Court and a school leaving certificate showing the date of birth of the accused as 15th October, 1961 was produced before the High Court, and on that basis the application for bail was made and the High Court released the accused on bail on the said footing. The release of the accused on bail was objected to on behalf of the complainant who filed an application for cancellation of the bail. The complainant produced the accused's birth certificate which showed the birth date as 9th October, 1957. The High Court by its order dated 31st August, 1977 cancelled the bail granted to the appellant referring to the evidence of the doctor before the Sessions Court, to the statement of the appellant under S. 313 of the Cr. P. C. and the finding recorded by the learned Sessions Judge on the point. The High Court also referred to the certificate produced by the complainant and ultimately held that the appellant was certainly not below the age of 16 years as contended by him. It appears that at the third stage when this appeal was admitted in this Court, another certificate to which we have already made a reference was produced wherein, as is stated earlier, the name of the school from which the transfer certificate was obtained is absent.
(3.) In this state of affairs with regard to the age of the accused on the date of the incident, we are satisfied that neither the Sessions Court nor the High Court was wrong in holding that the appellant was not below the age of 16 years on the date of the incident. We may in this connection refer to the fact that his birth certificate has been scrupulously kept away from the Court by the appellant. We, therefore, see no substance in the contention that the appellant was below the age of 16 years on the date of the incident.;