Butta Paswan v. State Of Bihar — 1997 DIGILAW 565 (PAT)

Judgment P.K.Sarin, J. 1. This criminal revision application is directed against the judgment and order dated 6th August, 1991 passed by 4th Additional Sessions Judge, Vaishali at Hajipur in Criminal Appeal No. 93 of 1991 dismissing the said criminal appeal in part in so far as it related to the conviction and sentence of the petitioners under Section 324 of the Indian Penal Code (hereinafter referred to as the Code). The petitioners were convicted and sentenced by 1st Assistant Sessions Judge in Sessions Trial No. 108 of 1982 under Sections 307 and 324 of the Code by judgment dated 6th July, 1991. The trial court had sentenced the petitioners to three years rigorous imprisonment under Section 324 of the Code and seven years rigorous imprisonment under Section 307 of the Code. However, the appellate court acquitted the petitioners of the charge under Section 307 of the Code. 2. The incident leading to the trial of the petitioners took place on 9th August, 1981 at 12.00 Noon at village Chandralaya, P.S. Hajipur, District-Vaishali. The prosecution case in brief was that the informant, Gul Bahar Paswan, along with his brother, Radhey Paswan, was getting the palm leaves and palm fruits plucked when petitioner No. 1 arrived and protested. However, the informant told him that the palm tree belonged to his family and he was getting the palm leaves and palm fruits plucked for his purpose. In the meantime, petitioner No. 2 arrived there with a Hansua. It was alleged that petitioner No. 1 assaulted the informant by Hansua causing injury on his head and left hand and petitioner No. 2 assaulted Radhey Paswan inflicting five injuries. Report was lodged with the Police which, after investigation, submitted charge sheet and petitioners were tried. The prosecution examined five witnesses in support of the prosecution case. The learned trial court, on appraisal of evidence, held the charges to be proved against the petitioners and convicted and sentenced them. The appellate court, on re-appraisal of evidence, concurred with the findings of the trial court in so far as it related to conviction and sentence of the petitioners under Section 324 of the Code. 3. It has been contended by the learned counsel for the petitioners that the petitioner No. 2 was a juvenile on the date of occurrence. The appellate court, on re-appraisal of evidence, concurred with the findings of the trial court in so far as it related to conviction and sentence of the petitioners under Section 324 of the Code. 3. It has been contended by the learned counsel for the petitioners that the petitioner No. 2 was a juvenile on the date of occurrence. It is contended that the petitioner No. 2 had stated his age to be about twenty two years at the time of his statement under Section 313 of the Code of Criminal Procedure and the trial court as well as the appellate court had estimated the age of petitioner No. 2 as twenty three years. It is contended that in this view in the year 1981 the petitioner No. 2 was less than sixteen years of age and he could not have been tried together with petitioner No. 1 in view of the provisions of Section 24 of the Juvenile Justice Act. Learned counsel for the petitioners has also contended that the prosecution evidence was not reliable. It is also contended that the case diary could not have been brought on the record as evidence in the case. Further contention was that the benefit of Section 360 of the Code of Criminal Procedure ought to have been extended to the petitioners. 4. The plea of petitioner No. 2 being juvenile does not appear to have been raised before the trial court or the appellate court. It is being raised for the first time in this revision. Section 24 of the Juvenile Justice Act (hereinafter referred to as the Act) provides that the juvenile has not to be tried with an accused who is not a juvenile and the case of the juvenile should be separated for trial. This could have been done when the plea of petitioner No. 2 being juvenile would have been raised at the trial and the trial court would have been convicted that the petitioner No. 2 was a juvenile. When stage of trial had already passed Section 24 cannot be invoked at this stage now. However, the question would still remain whether the trial itself is vitiated against petitioner No. 2 as a juvenile could not be tried by court of sessions but could be tried only by Juvenile Court. When stage of trial had already passed Section 24 cannot be invoked at this stage now. However, the question would still remain whether the trial itself is vitiated against petitioner No. 2 as a juvenile could not be tried by court of sessions but could be tried only by Juvenile Court. Moreover, the Act came into force in the year 1987 when the trial of the petitioner was already pending. Therefore, the provisions of Section 26 of the Act become applicable to the pending trial. Special provision has been made regarding pending trial against a juvenile under Section 26 of the Act which provides that all proceedings in respect of a juvenile pending in any court shall be continued in that court as if this Act had not been passed and if the court finds that the juvenile had committed an offence it shall record such finding and instead of passing any sentence in respect of the juvenile forward the juvenile to the juvenile court which shall pass orders in respect of the juvenile in accordance with the provisions of the Act as if it had been satisfied on enquiry under the Act that the juvenile has committed the offence. Therefore, the trial of the accused petitioner No. 2 could not have been separated under Section 24 of the Act even if he was a juvenile. His trial would have continued by virtue of Section 26 of the Act as if the Act had not been passed and such trial would have proceeded upto the stage of conviction. It was only after the conviction was recorded that the juvenile could have been forwarded to the Juvenile Court for passing appropriate orders in respect of juvenile. It is significant to note that Section 26 of the Act uses the word Juvenile and the intention of the provision is that juvenile has to be forwarded to the juvenile court for passing orders after conviction. 5. The learned counsel for the petitioners has placed reliance on a Full Bench decision of this court in the case of Krishna Bhagwan V/s. State of Bihar, 1989 PLJR 507, wherein the provision of Section 26 of the Act was considered. 5. The learned counsel for the petitioners has placed reliance on a Full Bench decision of this court in the case of Krishna Bhagwan V/s. State of Bihar, 1989 PLJR 507, wherein the provision of Section 26 of the Act was considered. In the said case also the question arose as to what procedure should be followed when a child within the meaning of Children Act has been tried and convicted by ordinary criminal court and the plea regarding bar of his trial by the ordinary criminal court is taken for the first time at appellate court stage. It was observed that the plea that the accused in question was a child could be entertained at the appellate stage but a caution was given that it should not be over-looked that many accused persons who had been tried and convicted for serious offences like murder, dacoity and rape may take such plea in the appeal just to get rid of the sentence of rigorous imprisonment imposed against them although there were hardly any material on the record in support of the plea that such accused persons, on the date of the commission of the offence, were children. It, was observed mat there may be a case where either in the first information report itself the accused might have been described as below sixteen years of age or during the trial his age has been determined or admitted to be below sixteen years on the date of occurrence and in that case no further enquiry in respect of the age is called for and the court can extend the benefit of the Act to such an accused. But in other cases on the materials on record it may not be possible for this court to be satisfied even in a prima facie manner that the accused may be a child on the date of commission of the offence and in that case there would be no question of directing determination of the age of the accused cpncerned on the date of the commission of the offence. It was observed that if the court was satisfied in a prima facie manner that on the date of the commission of the offence the accused might be a child the court may direct the competent authority to determine the age of such accused on the relevant date in accordance with Section 32 of the Act. Therefore, what has been observed in the said case is that there must be material on the record to satisfy the court prima facie that the accused might be a child/juvenile on the date of commission of the offence. In the present case, there is no material except the age as given by the accused at the time of his statement under Section 313 of the Code of Criminal Procedure on 14th February, 1991. The accused petitioner No. 2 has given his age as twenty three years in that statement. There was no material to support the said statement. The said age cannot be said to have been determined by the court nor it can be said that it was admitted by the prosecution. In the circumstances, it cannot be said that there is material on the record to satisfy that the petitioner No. 2 was juvenile on the date of commission of offence. Mere statement of the petitioner No. 2 at the time of his statement under Section 313 of the Code of Criminal Procedure would not be sufficient to satisfy that he was a juvenile on the relevant date. Consequently there would not be any occasion for referring the case of the petitioner No. 2 to the Juvenile Court for determination of his age under Section 32 of the Act. 6. The learned counsel for the petitioners has also placed reliance on a decision of this court in the case of Kumar Satyanand V/s. State of Bihar, 1983 Cri LJ 1532, wherein it has been held that joint trial of a child along with adult accused is not permissible in law. That was a case where trial had not concluded and the application of the accused for separating the trial was rejected by the trial court. Considering the facts of the said case it was observed that it would always be advisable for the court concerned to come to a definite finding regarding the age after due consideration of documents like certificates etc. Considering the facts of the said case it was observed that it would always be advisable for the court concerned to come to a definite finding regarding the age after due consideration of documents like certificates etc. or the medical report and over all the court should fix the age on its own estimation. This shows that the court has to be satisfied on the basis of material on the record. The said case does not help the petitioners in the facts of the present case. 7. The learned counsel for the petitioners has next relied on a decision of Apex Court in the case of Bhoop Ram V/s. State of U. P., 1991 (1) PLJR (SC) 62. In the said case the Supreme Court had directed the Sessions Judge, Bareilly to submit report after enquiry into the age of the appellant. The Sessions Judge submitted the report which included the certificate of Chief Medical Officer, Bareilly. The appellant had filled a school certificate before the Sessions Judge to prove that he had not completed sixteen years on the date of commission of the offence. However, the Sessions Judge did not rely on the school certificate. Considering the materials on record the Supreme Court held the accused appellant to have been below sixteen years of age on the date of commission of offence and. accordingly, accused was directed to be released. It also shows that there must be material on the record to come to a finding that the concerned accused was below sixteen years of age on the date of commission of offence. Mere plea or the statement of the accused cannot be said to be a material to arrive at such satisfaction. 8. However, in the case of Abdul Mannan and others V/s. State of West Bengal, 1996 (1) SCC 665 , the Apex Court has held that no useful purpose would be served to pass order in favour of the accused when he has already crossed the age of juvenile. In this view, in the present case also no useful purpose will be served for getting an enquiry made regarding the age of an accused petitioner No. 2 determined with reference to the date of commission of offence when, admittedly, he is no more a juvenile and he cannot be dealt with now by Juvenile Court. In this view, in the present case also no useful purpose will be served for getting an enquiry made regarding the age of an accused petitioner No. 2 determined with reference to the date of commission of offence when, admittedly, he is no more a juvenile and he cannot be dealt with now by Juvenile Court. It may also be pointed out that under Section 26 a juvenile has to be forwarded to the Juvenile Court after conviction so that appropriate orders may be passed by juvenile court under the Act. Section 21 of the Act lays down as to what orders can be passed by juvenile court against a delinquent juvenile. The juvenile court has jurisdiction to pass orders only in respect of juveniles and not in respect of a person who is not juvenile on the date on which the order has to be passed. 9. In these circumstances, there appears to be no force in the contention advanced by the learned counsel for the petitioners that the petitioner No. 2 was juvenile on the date of commission of offence and that his trial ought to have been separated and he should have been dealt with under the Act. 10. As regards the contention of the learned counsel for the petitioners that case diary could not have been admitted in evidence, the same appears to carry force. Case diary cannot be admitted in evidence and used as substantive evidence. It can only be used for confronting the witness with a statement recorded by the Investigating Officer and in that situation also only that part of the statement of the witness, recorded in the case diary, has to be brought on the record with which he was confronted. This is done in order to discredit the witness and not to use that part of the statement as substantive evidence. However, the finding of the trial court is not based on case diary alone but the same is based on appraisal of testimony of witnesses. The appellate court judgment show that the learned appellate court has re-appraised the evidence of the witnesses and other materials on the record but has not taken into consideration the case diary as evidence. It is the appellate courts Judgment which is under challenge in the present revision. Therefore, the judgment under revision does not suffer from any infirmity on that score. 11. It is the appellate courts Judgment which is under challenge in the present revision. Therefore, the judgment under revision does not suffer from any infirmity on that score. 11. As regards the contention of the learned counsel for the petitioners that the prosecution evidence was not reliable and the courts below have misappreciated the evidence, the same cannot be considered in this revision as that would require re-appraisal of evidence by this court. It is well settled now that the High Court in revision would not ordinarily enter into re-appraisal of evidence when there are concurrent findings by two courts below. This view finds support from the decision of the Apex Court in the case of State of Karnataka V/s. Appa Balu Ingale, AIR 1993 SC 1126 . Therefore, it would not be possible to enter into re-appraisal of evidence in this revision and record a different finding. There appears to be no ground to interfere in the order of conviction. 12. As regards sentence the petitioners have appeared to have suffered imprisonment for about two months as they were taken into custody by the trial court on 8.7.1991 and were released on 11.9.1991 under the orders of bail passed by this court. The incident is of 1981. Considering the lapse of long period since the date of incident, it would not be expedient now to send the petitioners again to jail to serve out the remaining sentence. Ends of Justice shall meet if their sentence is reduced to the period already undergone. 13. Accordingly, the sentence of the petitioners is reduced to the period already undergone. The petitioners are on bail. They need not surrender. Their liability under bail bonds is discharged. 14. Subject to the said modification in the sentence, the criminal revision application is dismissed.