Research › Search › Judgment

Rajasthan High Court · body

2002 DIGILAW 905 (RAJ)

Bajrang Lal v. State of Rajasthan

2002-05-01

KHEM CHAND SHARMA, SHIV KUMAR SHARMA

body2002
JUDGMENT 1. Accused appellant Bajrang Lal was indicted before the learned Sessions Judge, Jhunjhunu for having committed offence under Section 376 of the Indian Penal Code. Vide judgment dated September 30,1980 he was found guilty, convicted under Section 376 of the Indian Penal Code and was sentenced to suffer one year rigorous imprisonment and a fine of Rs. 2,000/-, in default of payment of fine, to further suffer rigorous imprisonment for six months. 2. On 21.10.1980, while admitting the appeal, this Court issued notice to the appellant as to why the sentence awarded to him should not be enhanced. Under these circumstances, the appeal has been placed before us. 3. The only contention by Mr. Amit Poonia, learned counsel appearing for the appellant is that as per the testimony of Dr. Mool Singh, PW-1 the age of the appellant on the date of occurrence was 15 years and be was child within the definition of Section 2(d) of the Rajasthan Children Act, 1970 (hereinafter to be referred as the 1970 Act). As the 1970 Act was not applicable to District, Jhunjhunu on the date of decision, the provisions contained in the Section 22 of the 1970 Act were not made applicable to the appellant. 4. It is further contended by Mr. Poonia, learned counsel appearing for the appellant that vide notification dated November 10, 1981 published in the Rajasthan Gazette dated 14.11 1980 the provisions contained in the 1970 Act were made applicable to District, Jhunjhunu and also the copy of the notification has been placed before us for our perusal. On the strength of Section 22 of the 1970 Act, it is urged that the appellant could not have been sentenced. Reliance was placed on Bhola Bhagat v. State of Bihar, 1997 8 SCC 720 . 5. Per contra Mr. B.M. Sharma, learned counsel appearing for the State supported the impugned judgment. 6. We have reflected over the rival submissions and carefully perused the material on record and the documents placed before us, we find that the provisions of 1970 Act were made applicable to District, Jhunjhunu w.e.f., November 14, 1981 and on that date the instant appeal preferred by the appellant was pending in this Court. 7. Section 22 of the 1970 Act provided thus- 22. 7. Section 22 of the 1970 Act provided thus- 22. Order that may not be passed against delinquent children-"Notwithstanding anything to the contrary contained in any other law for the time being in force, no delinquent child shall be sentenced to death or imprisonment, or committed to prison in default of payment of fine or in default of furnishing security. Provided that where a child who has attained the age of fourteen years has committed an offence and the children's court is satisfied that the offence committed is of so serious a nature or that his conduct and behaviour have been such that it would not be in his interest or in the interest of other children in a special school to send him to such special school and that none of the other measures provided under this Act is suitable or sufficient, the children's court may order the delinquent child to be kept in safe custody in such place and manner as it thinks fit and shall report the case for the orders of the State Government. (2) On receipt of a report from a children's court under sub-section (1), the State Government may make such arrangement in respect of the child as it deems proper and may order such delinquent child to be detained at such place, on such conditions and for such period as it think fit; Provided that the period of detention so ordered shall not exceed the maximum period of imprisonment to which the child could have been sentenced for the offence committed. (3) Save as provided in this Act, the words "conviction" and "sentence" shall cease to be used in relation to children dealt under this Act and any reference in any enactment to a person convicted, a conviction or a sentence shall, in the case of a child, be construed as including reference to a person found guilty of an offence, a finding of guilt or an order made upon such a finding, as the case may be". 8. We would also like to refer the provisions of Section 26 of the 1970 Act which are as under- 26. 8. We would also like to refer the provisions of Section 26 of the 1970 Act which are as under- 26. Special provision in respect of pending cases-"Notwithstanding anything contained in this Act, all proceedings in respect of a child pending in any court in any area on the date on which this Act comes into force in that area, shall be continued in that court as if this Act had not been passed and if the court finds that the child has committed an offence, it shall record such finding and, instead of passing any sentence in respect of the child, forward the child to the children's court which shall pass orders in respect of that child in accordance with the provisions of this Act as if it has been satisfied on inquiry under this Act that the child has committed the offence". 9. At this juncture, it will be useful to refer the following ratio indicated by their lordships of the Supreme Court in the case of Bhola Bhagat v. State of Bihar are as under- "The correctness of the estimate of age as given by the trial Court was neither doubted nor questioned by the State either in the High Court or in this Court. The parties have, therefore, accepted the correctness of the estimate of age of the three appellants as given by the trial Court. Therefore, these three appellants should not be denied the benefit of the provisions of a socially progressive statute. In our considered opinion, since the plea had been raised in the High Court and because the correctness of the estimate of their age has not been assailed, it would be fair to assume that on the date of the offence, each one of the appellants squarely fell within the definition of the expression "child". We are under these circumstances reluctant to ignore and overlook the beneficial provisions of the Acts on the technical ground that there is no other supporting material to support the estimate of ages of the appellants as given by the trial Court, though the correctness of that estimate has not been put in issue before any forum. Following the course adopted in Gopinath Ghosh, Bhoop Ram and Pradeep Kumar cases while sustaining the conviction of the appellants under all the charges we quash the sentences awarded to them". 10. From the Statement of Dr. Following the course adopted in Gopinath Ghosh, Bhoop Ram and Pradeep Kumar cases while sustaining the conviction of the appellants under all the charges we quash the sentences awarded to them". 10. From the Statement of Dr. Mool Singh, who examined the appellant, we are satisfied that he was 15 years of the age on the date of occurrence and was a child within the meaning of Section 2(d) of the 1970 Act. He could not have been convicted in view of Section 22 of the Act and could only be forwarded to special school, as the notification was made applicable in Jhunjhunu District w.e.f. November 14, 1981 and on that day the appeal was pending. The provisions contained in Section 26 of the 1970 Act can be made applicable and the appellant cannot be sentenced to suffer imprisonment. Since more than 21 years have lapsed and the appellant has already crossed 36 years of his age. The appellant cannot be forwarded to special school now. Thus, we are left with no other option except to quash the sentence awarded to the appellant. 11. For the reasons aforesaid, the appeal stands partly allowed. While sustaining the conviction of the appellant under Section 376 of the Indian Penal Code, we quash the sentence awarded to him. The appellant is on bail, he need not surrender to his bail bonds, which stand discharged and notice issued to appellant for enhancing of the sentence stands dropped.Appeal partly allowed. *******