Kumar Vs. State Of U.P  INSC 124 (21 April 1987)
A.P. (J) Sen, A.P. (J) Ray, B.C. (J) Citation: 1987 Air 1501 1987 SCR (2)1053
1987 SCC (2) 623 JT 1987 (2) 197 1987 Scale (1)1185
Children Act, 1952; SS, 2(4) & 29--College student took part in triple
murder--Documents filed in proof of age held of doubtful
authenticity--Appellant not child within the meaning of the provision.
of India, Article 136: Powers of the Court to take notice of an impropriety.
of Criminal Procedure, 1973: s. 374--Appeal--Wild and unfounded allegations
against Judges of High Court--Tendency-Strongly deprecated.
appellant--a student of intermediate class, was alleged to have led the attack
on the rival faction along with his accomplices armed with deadly weapons like
gun, pistol, sword, kanta, lathi etc. resulting in triple murder.
was also alleged to have opened fire with his gun at the deceased.
trial court disbelieved his plea of alibi, that on the date of occurrence he
was actually attending his classes in college, in support of which he tendered
in evidence the attendance register and also examined DW 1, the lecturer in
college, and he was convicted under s. 302 read with s. 149 of the Indian Penal
High Court in appeal affirmed the conviction. Agreeing with the trial court it
reached the conclusion that the entries in the college attendance register were
forged and passed strictures against the witness.
the appeal before this Court by special leave the appellant came forward with
the belated plea that he was a child below the age of 16 years within the
meaning of s.
of the U.P. Children Act, 1952 and therefore, the trial was vitiated by reason
of s. 29 of the Act. It was contended that in spite of repeated requests of his
counsel he was not heard by the High Court Judges on the point. While making
this frivolous assertion the accused also made wild allegations in an attempt
to 1054 destroy the credibility of the Judges and create doubt about the
correctness of the judgment appealed from. To substantiate the allegation he
and his legal advisors brought into existence certain correspondence. In
support of his age he filed affidavits of his father and the advocate. In addition.
he also placed on record copies of extract of the kutumo register of the Gaon
Sabha, certificate of High School examination, entry from the electoral roll,
and endorsement in ink below his statement recorded under ss. 313 of the Code
of Criminal Procedure, 1973.
the appeal, the Court
1.1 The appellant was not a child within the meaning ors. 2(4) of the U.P.
Children Act, 1952 at the time of occurrence and, therefore, was not entitled
to the benefit of section 29 of the Act. [1062F; 1055G-H]
The affidavits and the copies of documents placed on record, after the grant of
the special leave--extract of the kutumo register of the Gaon Sabha,
certificate of High School Examination and entry from the electoral roll, in
support of appellant's age are all of doubtful authenticity and it would be
unsafe to rely upon them. Such documents can always be brought into existence.
So is the endorsement in ink below the statement of the appellant recorded by
the trial court under s. 313 of the Code of Criminal Procedure 1973, to the
effect that "the age of 17 years appears to be correct". Even
assuming that the endorsement was made by the trial court, that was only an
estimate of age and does not necessarily show that the appellant was a child
within the meaning of s. 2(4) of the Act at the time of occurrence. [1062F;
The attempt made by the appellant and his legal advisors earlier to
substantiate the false plea of alibi by production of forged attendance
register, and the tendering of evidence of DW 1, against whom the High Court
has passed strictures for suborning himself in an attempt to thwart the course
of justice, makes it evident that the appellant and his legal advisors would go
to any extent in creating evidence to support the false plea now taken.
[1063CD] The |acts brought out in the prosecution case clearly show that the
incident which led to the triple murder was calculated, preplanned and
ruthlessly executed, and that the appellant not only led the assault but also
played a prominent role in it. It is incredible that he was a child below the
age of 16 years at that time. [1056H; 1057A]
There is nothing on record to substantiate the allegation that 1055 the
appellant was not heard by the High Court on the question of his age. If there
was any truth in that assertion it was expected that the learned Judges would
have made a mention of the fact that a contention was advanced on his behalf
that he was a child within the meaning of s. 2(4) of the Act, for whatever it
was worth. [1060DE]
The appellant and the other accused have gone further and made wholly wild and
unfounded allegations against the Judges of the High Court casting serious
aspersions on them. They have brought into existence certain correspondence in
an attempt to create prejudice against them. The propriety of placing copies of
the correspondence on record cannot be seen unless it was with a view to create
doubts and suspicion about the integrity of the Judges. It shows that the
appellant and his legal advisors can go to any extent to secure a reversal of
the judgment of the High Court. [1060FG]
The practice of making baseless imputations on the part of unsuccessful
litigants against Judges is most unhealthy and this Court takes serious notice
of this evil.
members of the bar equally share this responsibility and should ensure that
such uncalled for aspersions are not cast on the Judges. The counsel who
drafted the special leave petition should have shown greater circumspection.
Appellate Jurisdiction: Criminal Appeal No. 287 of 1986.
the Judgment and order dated 26.4.1985 of the Allahabad High Court in Crl.
Appeal No. 1938 of 1977.
Singh, N.P. Midha and Mrs. Rani Chhabra for the Appellant. Prithvi Raj and D.
Bhandari for the Respondent.
Judgment of the Court was delivered by SEN, J. This appeal by special leave
directed against the judgment of the Allahabad High Court dated April 26, 1985
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.
point was not taken in the High Court nor was there any such plea 1056 raised
during the trial. This was a case of triple murder.
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.
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 & Anr. v. State of U. P.,  4 SCC 149; Umesh Chandra
v. State of Rajasthan,  3 SCR 583 and Gopi Nath Ghosh v. State of West Bengal,
 I SCR 803 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.
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 Sessions was bad in law.
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.
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.
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 1057 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.
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 bathing and washing their
clothes. At about 11.30 a.m. the three deceased Basdeo, Anant Ram and Mahabir
had gone to the tank for taking bath and washing their clothes. One of the
eye-witnesses Kumari Shashi Kala, PW 3, sister of the deceased Basdeo had also
gone there for similar purposes. She was at the southern burj of the tank,
deceased Basdeo was on the northern burj, deceased Mahabir and Anant Ram were
on the steps of the ghat on the eastern bank. The appellant Vinod Kumar along
with his companions suddenly appeared at the ghat armed with deadly weapons
like gun, pistol, sword, kanta, lathi etc. and they opened an assault on the
three dead persons. The accused almost simultaneously opened fire with his gun
at the deceased Basdeo and the appellant Vinod Kumar with his pistol at the
deceased Mahabir. Basdeo on receiving gun shot injuries jumped into the tank to
swim across and take to safety. The deceased Mahabir was also injured by
gun-fire and tried to escape but fell down on receiving another gun shot fired
by the accused Hanuman. When he fell down, the accused Shiv Prasad and Ranjit
Singh repeatedly hit him with their sword and kanta resulting in his
instantaneous death. The deceased Anant Ram was also assaulted by the accused
Roop Ram and Gopal with their sword and kanta and he died on the spot as a
result of the injuries received by him. The appellant Vinod Kumar and the
accused Hanuman then rushed to the western bank of the tank and opened fire at
the fleeing Basdeo and on being hit he fell down in the field of Deo Karan. By
that time all the accused reached the spot and there he was again assaulted by
the appellant and his companions and his head was chopped off the trunk.
Thereafter, the appellant and his companions made good their escape and the
accused Roop Ram carried the decapitated head of the deceased Basdeo.
appellant abjured his guilt and complained that he had been 1058 falsely
implicated due to previous animosity. His only plea in defence at the trial as
well as in the High Court was one of alibi. It was alleged that he was a student
of Intermediate class in C.A.V. Inter College, Allahabad and on the date of the
occurrence i.e. on August 20, 1973 he was actually attending his classes in the
college. He tendered in evidence the college attendance register and also
examined Virendra Kumar Mehta, DW 1, a Lecturer in Physics in the college in
support of his plea of alibi.
learned Additional Sessions Judge and the High Court have during the course of
their carefully written judgments marshalled the entire evidence and come to
the conclusion that the guilt of the appellant and the other accused was proved
by the prosecution beyond all reasonable doubt. The High Court on a
consideration of the evidence has come to the conclusion that there was no
reason to disbelieve the unimpeachable testimony of PW 3 Kumari Shashi Kala,
sister of the deceased Basdeo as well as the testimony of the three other
eyewitnesses, PW 1 Ram Shanker, PW 2 Ram Swarup, brother 01' the deceased
Mahabir and PW 6 Prayag Narain, who were undoubtedly present at the place of
the incident, and have given a graphic description of the entire incident. It
observed that though these witnesses were subjected to close cross-examination,
the defence had failed to impeach their credibility as truthful witnesses. The
evidence of these witnesses clearly brings out that it was the appellant who
led the sault which resulted in the triple murder of Basdeo, Anant Ram and
to the plea of alibi raised by the appellant, both the learned Additional
Sessions Judge and the High Court have recorded a finding that he has failed to
substantiate that plea. The crude attempt to establish the plea of alibi by
production of the college attendance register and the examination of Virendra
Kumar Mehta, DW 1 has failed. The High Court agreeing with the learned
Additional Sessions Judge has come to the conclusion that the entries in the
college attendance register were forged and has passed strictures against this
witness that he being a person in a responsible position, should have appeared
as a witness for the defence and had not cared to uphold the dignity of his
position, and by giving suborned evidence has tried to thwart the course of
justice not only by his evidence but also by interpolating the college
the narration of the facts it is incredible that the appellant was only a child
within the meaning of s. 2(4) of the Act i.e. below the 1059 age of 16 years at
the time of the occurrence, which is nothing but a complete afterthought.
Undeferred by the fact that the appellant had failed to establish the false
plea of alibi by the production of the forged college attendance register and
taking cue from the various decisions of this Court as reported in Satto &
Ors. v. State of U.P.,  3 SCR 768; Jayendra & ANR. v. State of U.P.,
Umesh Chandra v. State of Rajasthan and Gopi Nath Ghosh v. State of West Bengal
(supra) displaying the Court's deep concern and solicitude about the treatment
of juvenile offenders, the appellant is emboldened to come forward with this
belated plea that he was a child within the meaning of s. 2(4) of the Act and
therefore the trial was vitiated by reason of s.
However, before we deal with the question on merits we would like to advert to
unseemly features in this case.
case presents a feature which is rather disturbing.
the first place, there are false averments made in the special leave petition
in order to present a distorted picture of the hearing of the appeals in the
there are wild and unfounded allegations made against the learned Judges in an
attempt to destroy their credibility and create doubt about the correctness of
the judgment appealed from. As to the first aspect, the legal advisors of the
appellant and the other accused have gone to the extent of making out an
entirely false case, namely, .that the High Court did not give a hearing to
because the learned counsel disdained from raising the point at the stage of
grant of special leave, does not imply that we should not take notice of the
shall indeed be failing in our duty if we do not comment upon the conduct of
the appellant and the other accused and their legal advisors in trying to
create prejudice against the High Court. It is averred in paragraph 13 of the
special leave petition that the appeals were taken up for hearing on April, 1,
1985 at 3.15 p.m. and that day only the names of the accused, weapons, sections
and sentences, date and time of the occurrence etc. were given out when the
Court rose for the day at 3.45 p.m. It is then averred in para 14 that on the
next day i.e. on the 2nd, the appeals could not be taken up. They were taken up
on the 3rd at 2.10 p.m. when the case was called out when Shri Chandra Shekhar
Saran and Shri P.C. Chaturvedi, the two senior counsel along with Sarvashri
Dharam Pal Singh, G.S. Chaturvedi and A.K. Sachan appeared. It is alleged that
when the case was called out and Shri Chandra Shekhar Saran wanted to argue the
appeals, the learned Judges said that they had seen the case and they did not
want to hear the appellants but wanted to hear the State counsel. At this
point, it is said that Shri P.C. Chaturvedi pointed out the age of the
appellant Vinod Kumar and thereupon one 1060 of the Judges (Honable Mr. Justice
X who delivered the judgment) observed that since they wanted to allow the
appeals, therefore, they did not want to hear the appellants and if need be.
they would call upon them later. It is then alleged that the Court called upon
the State as to how it supported the judgment as two of the four eye-witnesses
had been disbelieved by the learned Additional Sessions Judge and the remaining
two witnesses were partisan witnesses, one of whom being PW 3 Kumari Shashi
Kala, who was a young girl of 15 years and would not go to the tank alone at
is further alleged that after the prosecution had placed the evidence of PW 2
Ram Swarup, the Court was not satisfied and reserved the judgment. At this
stage, it is said, Shri P.C. Chaturvedi again tried to point out the age of the
appellant but Mr. Justice X observed that when the veracity of the two
eyewitnesses was doubtful there remained no need to proceed further. The Court
rose at 3.45 p.m. The allegations in paras 14 to 17 are that the Judges gave an
impression at the conclusion of the hearing on April 3, 1985 that the appeals
would result in an acquittal while they pronounced the judgment on the 28th
dismissing the appeals and it is then averred in para 17 that this decision
came as a shock to the counsel appearing for the accused. There is nothing on
record to substantiate these allegations apart from the letter written by Shri
Dharam Pal Singh to the counsel in this Court to file the special leave
petition to which we shall presently refer. In view of the conduct of the
appellant and the other accused and their legal advisors we are not prepared to
act on the assertion in the letter written by Shri Dharam Pal Singh. If there
was any truth in this assertion, it was expected that the learned Judges would
have made a mention of the fact that a contention was advanced on behalf of the
appellant that he was a child within the meaning of s. 2(4) of the Act for
whatever it was worth.
feel deeply concerned that the appellant and the other accused do not rest
themselves by making this false assertion that they were not heard by the High
Court but they have gone further and made wholly wild and unfounded allegations
against the learned Judges casting serious aspersions on them. They have
brought into existence certain correspondence in an attempt to create prejudice
against the learned Judges. We fail to see the propriety of placing copies of
these two letters unless it was with a view to create doubts and suspicion
about the integrity of the learned Judges. It shows that the appellant and his
legal advisors can go to any extent to secure a reversal of the judgment of the
High Court upholding the conviction of the appellant for having committed
offences of murder punishable under s. 302 read with s. 149 of the Indian Penal
is a letter 1061 dated April 23, 1985 i.e. just three days before the delivery
of the judgment, said to have been written by Shri K.L.
to the accused Ram Gopal Sachan. We understand that Shri Grover is
comparatively a senior counsel practicing in the High Court at Allahabad. The
letter of Shri Grover appears to be written in response to a letter written by
the accused dated April 20, 1985 seeking his assistance. Shri Grover naturally
expressed his resentment and displeasure that the accused should have written a
letter of this nature to him asking that he should try to influence the learned
Judges. It is in these terms:
"I was surprised and sorry after reading it. Neither I am a Counsel in
Criminal Nos. 1937 and 1938 of 1977 Hanuman and others and Vinod and others,
nor I know any of them and I have no connection with these cases. You have
written about Shri D.P. Singh, Advocate. He is a good counsel but your
assertions are baseless. I do not take part in any unscrupulous thing. This is
correct that Hon'ble X is my friend but he is a Judge and I am an advocate.
Decisions are not sold in the High Court. Hon'ble X is like all other Judges of
the High Court very honest Judge. Either you have written false thing or you
have been cheated by some body. Kindly do not correspond with me in this
connection." The other is a letter dated May 24, 1985 addressed by Shri
Dharam Pal Singh to the counsel in this Court instructing him to file the
special leave petition, saying that as a counsel his "conscience was
shocked", narrating that at the hearing the learned Judges gave the
impression that this was a case which deserved acquittal and they would like to
hear the prosecution counsel and thereafter, if necessary, they would hear the
accused. In the letter he asserts that on this the senior counsel Shri Chandra
Shekhar Saran did not address the Court, but Shri P.C. Chaturvedi told the
Court that the appellant was a child upon which one of the learned Judges
observed that since they were allowing the appeal, it was not necessary to go
into the question. He then goes on to say that he and the other counsel were
shocked by the judgment delivered by the learned Judges dismissing the appeals.
He also adverts to Shri Grover's letter and mentions that he had taken the
accused Ram Gopal Sachan to Shri Grover's place and enquired about the letter
since the accused denied that he had written any such letter. According to his
version Shri Grover declined to give them the letter as he did not want to get
involved in any controversy and he then adds:
"As counsel, we owe a duty to our client and all of us appearing on behalf
of the accused feel that we have failed therein and our conscience is in
distress." He then concludes by saying:
do not know whether all these facts should be placed before the Hon'ble Supreme
Court and this decision we leave in your hands. But we do request you to Kindly
see that the hearing which we could not get for these accused (having a case
for acquittal) do get an opportunity of placing their case before the
Court." perusal of these letters would tend to show that there was an
attempt to blackmail the learned Judges. We cannot but deprecate the conduct of
the appellant and the other accused in making such wild allegations about the
propriety and conduct of the learned Judges. We have no doubt in our mind that
the allegations are totally false and untrue. It is pertinent to observe that
Shri Dharam Pal Singh has chosen not to file any affidavit in support of the
assertions made by him in his letter. The learned counsel who drafted the
special leave petitions should have shown greater circumspection before casting
such serious aspersions on the High Court. We are not prepared to believe that
it was mentioned before the learned Judges at the hearing of the appeals that
the appellant was a child within the meaning of s. 2(4) of the Act when this
fact is not borne out by the judgment and there is nothing on record to
substantiate the allegation.
the facts and circumstances of this particular case, we are not prepared to
countenance the argument that the appellant was a child within the meaning of
s. 2(4) of the Act. After the grant of special leave, the appellant apart from
his own affidavit, filed two affidavits of his father Sri Narain Sachan and an
affidavit by Shri Jitendra Prasad Singh, Advocate, brother of Dharam Pal Singh.
He has also placed on record copies of certain documents, namely (1) extracts
of the kutumo register in Form 'A' of Pania Mau Gaon Sabha issued by the Village
Panchayat Officer, Nyaya Panchayat, Dev Rahat. (2) Certificate of the High
School Examination, 1973 issued by the Secretary of Madhyamik Shiksha Parishad,
Uttar Pradesh. (3) Entry from the electoral roll relating to U.P. State
Legislative Assembly Constituency No. 275, Allahabad, Mohalla Buxi Khurd. (4)
Statement of the appellant recorded by the learned Additional Sessions Judge
under s. 3 13 of the Code of Criminal Procedure, 1973.
have gone through these 1063 affidavits and other documents and we are not
prepared to act on them. At the hearing we asked the learned counsel to produce
the original documents. We are satisfied that the documents are of doubtful
authenticity and it would be unsafe to rely upon such documents. Such documents
can always be brought into existence. We would refer to the statement of the
appellant recorded by the learned Additional Sessions Judge on June 4, 1975
wherein the appellant stated his age to be 17 years. Beneath the statement,
there is an endorsement in ink: "The age of 17 years appears to be
correct". We are left to guess who made this endorsement.
assuming that the endorsement was made by the learned Additional Sessions
Judge, that was only an estimate of age and does not necessarily show that the
appellant was a child within the meaning of s. 2(4) of the Act at the time of
occurrence. In view of the earlier attempt made by the appellant and his legal
advisors to substantiate the false plea of alibi by production of forged
attendance register and the tendering of evidence of Virendra Kumar Mehta, DW 1
against whom the High Court has passed strictures for suborning himself in an
attempt to thwart the course of justice, it is quite evident that the appellant
and his legal advisors would go to any extent in creating evidence to support
the false plea now taken.
conclusion, we cannot but once again deprecate the growing tendency on the part
of the unsuccessful litigants to impute unworthy motives to Judges and this has
become not uncommon these days. We frown upon the practice of making such
baseless imputations against Judges and time has come for this Court to take
serious notice of this unhealthy trend before it becomes a growing menace and
an unmitigated evil. We feel that the members of the bar equally share this
responsibility and should ensure that uncalled for aspersions are not cast on
the Judges. Such a course, of action on their part would enhance the prestige
of the Court and the legal profession. For these reasons, the appeal must fail
and is dismissed, P.S.S Appeal dismissed.