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2003 DIGILAW 625 (RAJ)

Suresh Dutt v. State of Rajasthan

2003-04-24

D.N.JOSHI

body2003
Honble JOSHI, J.–The learned Juvenile Court convicted the revisionist-petitioner for offences under Section 302 and 364 I.P.C. on 5.09.1988 and referred the matter to the State Government u/Sec. 22(i) of the Juvenile Justice Act, 1986 (in short ``the Act hereinafter). On receipt of the letter dated 24.03.1989 from the State Government, the Juvenile Court ordered on 19.06.1989 to detain the petitioner for a period of 5 years in Juvenile Reformatory, Udaipur attached to the Central Jail, Udaipur. (2). As per finding of the Juvenile Court, the accused was of 15 years, 3 months and 10 days of age on the date of occurrence i.e. 4.112.1981. As per certificate of School, the date of birth of the revisionist-petitioner was 24.8.1966 and the appeal u/Sec. 37 of the Act was preferred before the Court of Sessions on 30.05.1989 against the above order, who transferred the same to the Court of Additional Sessions Judge, Jodhpur (Special Judge, E.C. Act), which was received in the later Court on 22.2.1990. On 12.05.1992, the learned Additional Sessions Judge reduced the duration of detention from 5 years to 3 years in Judicial Reformatory, Udaipur u/Sec. 22(i) of the Act. Against this judgment and appeal by the learned Additional Sessions Judge, this revision has been filed on 17.05.1992 u/Sec. 38 of the Act. (3). The facts giving rise to the present case are that on an information by Shyamlal, a F.I.R. was registered against the revisionist-petitioner for the alleged murder of Vinod Kumar on 4.12.1981, who had gone with him and was not seen alive thereafter. After usual investigation, challan was submitted against the accused on 11.1.1982. The learned Juvenile Court relying on the evidence of the last seen and recovery of the dead body of the deceased at the instance of the accused, convicted the revisionist-petitioner as aforesaid. The learned Juvenile Court also relied on the evidence of Identification Parade of the articles held during investigation by the then Munsif and Judicial Magistrate PW. 16 Mr. Prashant Kumar, PW.12 Dr. P.D. Purohit, who conducted the post mortem of the deceased found that the cause of the death was strangulation with help of cord. According to the prosecution, the deceased was burnt after murder. (4). I have heard learned counsel for the revisionist-petitioner as well as the learned Public Prosecutor. (5). 16 Mr. Prashant Kumar, PW.12 Dr. P.D. Purohit, who conducted the post mortem of the deceased found that the cause of the death was strangulation with help of cord. According to the prosecution, the deceased was burnt after murder. (4). I have heard learned counsel for the revisionist-petitioner as well as the learned Public Prosecutor. (5). Learned counsel for the petitioner argued that the prosecution has not been able to prove the offences alleged to have been committed by the accused and challenged the finding of conviction recorded by the Juvenile Court and upheld by the Court of Sessions. Secondly, the learned counsel argued that the Court of Additional Sessions Judge was not competent to try and hear the appeal u/Sec. 37 of the Act and the conviction is vitiated on this sole ground. Thirdly, he has argued that as the revisionist- petitioner has now attained the age of 18 years, he cannot be sent to Juvenile Reformatory in view of the provisions of Section 21(1)(d) of the Act. (6). The learned Public Prosecutor controverted the arguments advanced by the learned counsel for the revisionist-petitioner and supported the findings given by the learned Juvenile Court, which were upheld by the Appellate Court on facts as well as on the point of law. (7). The case of the accused-petitioner is based on circumstantial evidence. The Apex Court in Bodh Raj @ Bodha & Ors. vs. State of Jammu & Kashmir, (1), has held as under :- ``For a crime to be proved, it is not necessary that the crime must be seen to have been committed and must, in all circumstances be proved by direct ocular evidence by examining before the Court those persons who had seen its commission. The offence can be proved by circumstantial evidence also. The principal fact or factum means of certain probans, that is, the evidentiary facts. To put it differently circumstantial evidence is not direct to the point is issue but consists of evidence of various other facts which are so closely associated with the fact in issue that taken together they form a chain of circumstances from which the existence of the principal fact can be legally inferred or presumed. There is no doubt that conviction can be based solely on circumstantial evidence but the conditions precedent before conviction could be based on circumstantial evidence, must be fully established. There is no doubt that conviction can be based solely on circumstantial evidence but the conditions precedent before conviction could be based on circumstantial evidence, must be fully established. They are : (1) the circumstances from which the conclusion of guilt is to be drawn should be fully established. The circumstances concerned `must or `should and not `may be established : (2) the facts so established should be consistent only with the hypothesis of the guilt of the accused, that is to say, they should not be explainable on any other hypothesis except that the accused is guilty; (3) the circumstances should be of a conclusive nature and tendency; (4) they should exclude every possible hypothesis except the one to be proved; and (5) there must be a chain of evidence so complete as not to leave any reasonable ground for the conclusion consistent with the innocence of the accused and must show that in all human probability the act must have been done by the accused. (8). The above principles are being called ``Panchsheel of circumstantial evidence vide decision in Sharad Birdhichand Sarda vs. State of Maharashtra (2). The Apex Court has dealt with several other decisions in this respect in Bodh Rajs case (supra) and I need not burden the judgment by quoting them herein extenso. RECOVERY OF DEAD BODY : (9). The first circumstance relied by the prosecution was the recovery of dead body at the instance of the accused. The learned Juvenile Court has dealt with this aspect of the matter at page 6 and 12 of the its judgment. As per statement of Investigating Officer PW.15 Rama Kishan, the accused was arrested vide Ex.P/23 and he gave an information Ex.P/24 allegedly to be under Section 27 of the Evidence Act to the Investigating Officer about the recovery of the dead of the deceased Vinod Kumar. The dead body was recovered from a mortuary at the instance of the accused vide Ex.P/4. As per statement of Investigating Officer, the body of the deceased was identified by Shyamlal and it was found in a half burnt condition. A half burnt cord was also recovered from the site. (10). PW.7 Ramkrishan Singh and PW.11 Nepal Singh supported the evidence given by the Investigating Officer about the recovery of the dead body of the deceased. The evidence is further supported by the statement of PW.3 Sohanraj. A half burnt cord was also recovered from the site. (10). PW.7 Ramkrishan Singh and PW.11 Nepal Singh supported the evidence given by the Investigating Officer about the recovery of the dead body of the deceased. The evidence is further supported by the statement of PW.3 Sohanraj. The finding given by the Juvenile Court was to the effect that the room, from where the body was recovered was in a dilapidated condition and it was not surrounded by the inhabitants and only the accused was in knowledge of the dead body to be found there. The finding is based on proper appreciation of evidence. Before the Appellate Court, this finding was challenged. The learned Appellate Court has dealt with this aspect of the matter at page 4 of its judgment. As per judgment of the learned Appellate Court, the evidence of PW.5 Shyamlal stands corroborated by Ex.P/5. PW.15 Ramkishan, A.S.I. has proved the memo of arrest and recovery memo and the recovery of dead body, which stands proved by the evidence of PW.3 Sonraj and PW.7 Ramkishan. Thus, the finding of the recovery of dead body has been confirmed by the Appellate Court. There is no bar in exercise of revisional jurisdiction by this Court to re-appreciate the evidence and disturb the concurrent findings of fact reached by the courts below, but the power should be exercised only for proper administration of criminal justice and not for substituting of its own opinion. (11). The learned counsel for the revisionist-petitioner was unable to point out any infirmity in recording above finding by both the courts below. RECOVERY OF CHAPPALS : (12). Another circumstance or piece of evidence is recovery of `Chappals of the deceased at the instance of the accused. The learned Juvenile Court has dealt with this aspect of matter in para 13 at page 15 of its judgment. As per the Investigating Officer, information u/Sec. 27 of the Evidence Act recorded vide Ex.P/26 was given by the accused and the Chappals were recovered on 6.12.1981. It cannot be said in the facts and circumstances of the case that the recovery was from a place accessible to all. The said finding of the Juvenile Court has been affirmed by the Appellate Court. It cannot be said in the facts and circumstances of the case that the recovery was from a place accessible to all. The said finding of the Juvenile Court has been affirmed by the Appellate Court. As per the judgment of the Appellate Court, the said `Chappals were recovered from a pit at the instance of the accused and the recoveries have been proved by the evidence of PW.1 Ghewar Ram and PW. 17 Jalam Singh. IDENTIFICATION OF CHAPPALS : (13). An identification parade of the `Chappals was held during investigation by PW.16 Prashant Kumar, PW.5 Shyamlal, father of the deceased has identified the said `Chappals to be of his deceased son Vinod Kumar during an identification parade held on 23.12.1981. There appears to be no infirmity either in judgment of the Juvenile Court or in the judgment of the Appellate Court in relying upon this circumstance. RECOVERY OF BAG. BOOKS AND COPIES : (14). The another circumstance relied by the prosecution against the revisionist-petitioner was regarding recovery of bag, books and copies of the deceased. These recoveries have also been made at the instance of the accused. The books bore the name of Vinod Kumar. The same were identified by PW.5 Shyamlal father of the deceased and PW.16 Prashant Kumar has also proved the fact of identification during parade held in this regard. (15). The recoveries of dead body, chappals, bag, and books could not be assailed by the learned counsel for the revisionist- petitioner. LAST SEEN : (16). The circumstance of `last seen has also been proved by the evidence of the prosecution. In this regard, the learned Juvenile Court has relied upon the evidence of PW.8 Gopal Singh. The death of deceased Vinod Kumar was due to strangulation. The knot of the cord was half burnt. (17). PW. 5 Shyamlal has stated that on the date of occurrence, he had seen going Vinod with the accused alongwith books and bag in the second shift at 12 noon. But, when he came to house after attending the office, Vinod Kumar, who ought to have reached till 6 p.m. at home, did not reach till 7. He made a search for him and at 7.15 p.m., Gopal Singh PW.8 stated that the deceased and accused-petitioner were with him and after leaving him at Panchayat Samiti, Vinod Kumar and Suresh Dutt went together. Suresh was driving the cycle. He made a search for him and at 7.15 p.m., Gopal Singh PW.8 stated that the deceased and accused-petitioner were with him and after leaving him at Panchayat Samiti, Vinod Kumar and Suresh Dutt went together. Suresh was driving the cycle. The deceased had taken a bottle and books in his bag and the second shift of the school was a start at 12.30 noon. On the unfortunate day, the deceased was elected as President of the Science Faculty. The statement of Gopal Singh PW. 8 stands corroborated by the evidence of PW.10 Shanker Dayal. The accused Suresh was also asked about the whereabouts of the deceased, but at the first instance he denied having gone with the deceased and on the next moment he stated that the deceased had gone with Bhopal Singh. Thereafter, the accused informed that the deceased had gone in military area. He has further stated that he had sold Vinod to a `truckwala. It has been proved by the prosecution that the deceased was not seen alive thereafter. The finding of the Juvenile Court has been confirmed by the Appellate Court. There appears to be no reasonable grounds to take a different view. MOTIVE : (18). The circumstance of motive has not been fully established by the evidence of the prosecution. Even then, it is not fatal as the motive remains closed in the heart of the accused. I find that the view taken by both the courts below with regard to the involvement of the accused-petitioner in the commission of crime of murder of Vinod Kumar on the fateful day, has been established beyond reasonable doubt on the principles of circumstantial evidence stated in the earlier part of the judgment. Both the courts below have carefully appreciated the evidence of witnesses and taken into account the medical evidence and thereafter, recorded the order of conviction u/Sec. 302 and 264 IPC. I am not persuaded to take a different view than the one taken by the courts below in revisional jurisdiction in so far as the involvement of the accused-appellant in the commission of crime is concerned. Therefore, the conviction of the revisionist- petitioner for the offences u/Sec. 302 and 264 IPC is well merited and requires no interference by this Court. (19). Therefore, the conviction of the revisionist- petitioner for the offences u/Sec. 302 and 264 IPC is well merited and requires no interference by this Court. (19). The Juvenile Court has not relied upon the recovery of container of diesel, but on appreciation of evidence, it has held that the diesel was purchased by the accused petitioner on the date of occurrence. The medical evidence, post mortem report and other circumstances prove that the he was strangulated with cord and thereafter burnt pouring diesel upon him. COMPETENCY OF APPELLATE COURT IN HEARING APPEAL : (20). Before appreciating the next argument advanced by the learned counsel relating to Section 21(1)(d) of the Act is concerned, it is relevant to note that in view of the judgment of Arnit Das vs. State of Bihar (3), the crucial date for determining whether a person is a juvenile or not under the Act of 1986 is the date when he is brought before the Court. The accused petitioner was brought for the first time before the Court on 11.1.1982. For the sake of repetition, it is stated that the alleged occurrence took place on 4/5.12.1981 and on that day the accused was 15 years, 3 months and 10 days old. Undisputedly, the date of birth of the accused is 24.08.1966. (21). During the relevant period, Rajasthan Children Act, 1970 was in force and it was made applicable to Jodhpur District on 26.06.1974. (22). As per Section 2(f) of the Children Act, 1970 ``childrens court means a court constituted under Section 5. (23). As per the judgment of this Court in State of Rajasthan vs. Mahaveer Singh (4), the provisions of Children Act were made applicable even to offences punishable with death or imprisonment for life. These provisions relate to Constitution of a Children Court and not to a Court of Sessions. The Juvenile Justice Act came into force on 2.10.1987 before the final judgment rendered by the Juvenile Court on 19.06.1989. On the day when the conviction was recorded against the accused on 5.09.1986, the Act was not applicable and the Children Court (at that time) under the provisions of Section 22(ii) of the Children Act, 1970 referred the matter to the State Government, where it remained pending for a period of about three years and when the matter was pending before the State Government, the Act was made applicable. (24). (24). Section 26 of the Act, which is a special provision in respect of pending cases, reads as under :- ``26. Special provision in respect of pending cases.- Notwithstanding anything contained in this Act, all proceedings in respect of a a juvenile 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 juvenile has 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 that juvenile in accordance with the provisions of this Act as if it has been satisfied on inquiry under this Act that the juvenile has committed the offence. Section 22 of the Act is para-materia to Section 22 of the Rajasthan Children Act, 1970. Section 22 of the Act reads as under :- ``22. Orders that may not be passed against delinquent juveniles-(1) Notwithstanding anything to the contrary contained in any other law for the time being in force, no delinquent juvenile 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 juvenile who has attained the age of fourteen years has committed an offence and the Juvenile Court is satisfied that the offence committed is of so serious a nature or that his conduct and behavious have been such that it would not be in his interest or in the interest of other juvenile in a special home to send him to such special home and that none of the other measures provides under this Act is suitable or sufficient, the Juvenile Court, may order the delinquent juvenile 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 Juvenile Court under sub- section (1), the State Government may make such arrangement in respect of the juvenile as it deems proper and may order such delinquent juvenile to be detained at such place and on such conditions as it thinks fit: Provided that the period of detention so ordered shall not exceed the maximum period of imprisonment to which the juvenile could have been sentenced for the offence committee. (25). Therefore, for the purpose of the case, it can be said that appeal was preferred by the revisionist-petitioner u/Sec. 37 of the Act. As per Section 37, any person aggrieved by any order made by a competent authority under this Act may within 30 days from the date of such order, prefer an appeal to the Court of Session. The appeal was preferred by the revisionist-petitioner to the Court of Sessions and it was transferred by the Sessions Judge, Jodhpur for disposal according to law to the Court of Additional Sessions Judge, Jodhpur. Before the final disposal of the case by the Children Court (thereafter named as Juvenile Court), the provisions of Children Act were applicable and the provisions of the later Act were made applicable on 2.10.1987. In view of Section 32 read with Section 37 of the Act, the appeal could be and was preferred to the Court of Sessions. As per Section 9 of the Code of Criminal Procedure, the Court of Sessions includes the Court of Additional Sessions Judge also, which was situated within Jodhpur and under the control of Court of Sessions. In the considered opinion of the Court, after receipt of the case on transfer from the Court of Sessions, the learned Additional Sessions Judge, Jodhpur (Special Judge, E.C. Act) was competent to hear ad decide the appeal. Therefore, the contention of the learned counsel is liable to be rejected and is hereby rejected. SECTION 22 OF THE JUVENILE JUSTICE ACT (26). As far as the contention relating to Section 21(1)(d) of the Act is concerned, I have gone through the Section 21 of the Act, which reads as under :- ``21. Therefore, the contention of the learned counsel is liable to be rejected and is hereby rejected. SECTION 22 OF THE JUVENILE JUSTICE ACT (26). As far as the contention relating to Section 21(1)(d) of the Act is concerned, I have gone through the Section 21 of the Act, which reads as under :- ``21. Orders that may be passed regarding delinquent juveniles- (1) Where a Juvenile Court is satisfied on inquiry that a juvenile has committed an offence, then, notwithstanding anything to the contrary contained in any other law for the time being in force, the Juvenile Court may, if it so thinks fit,- (a) allow the juvenile to go home after advice or admonition; (b) direct the juvenile to be released on probation of good conduct and placed under the care of any parent, guardian or other fit person, on such parent, guardian or other fit person executing a bond, with or without surety as that Court may require, for the good behavious and well-being of the juvenile for any period not exceeding three years; (c) direct the juvenile to be released on probation of good conduct and placed under the care of any fit institution for the good behavious and well-being of the juvenile for any period not exceeding three years; (d) make an order directing the juvenile to be sent to a special home,- (i) in the case of a boy over fourteen years of age or of a girl over sixteen years of age, for a period of not less than three years; (ii) in the case of any other juvenile, for the period until he ceases to be a juvenile: Provided that the Juvenile Court may, if it is satisfied that having regard to the nature of the offence and the circumstances of the case it is expedient so to do, for reasons to be recorded, reduce the period of stay to such period as it thinks fit: Provided further that the Juvenile Court may, for reasons to be recorded, extend the period of such stay, but in no case the period of stay shall extend beyond the time when the juvenile attains the age of eighteen years, in the case of a boy, or twenty years, in the case of a girl; (e) order the juvenile to pay a fine if he is over fourteen years of age and earns money. (2) Where an order under clause (b), clause (c) or clause (e) of sub-section (1) is made, the Juvenile Court may, if it is of opinion that in the interests of the juvenile and of the public it is expedient so to do, in addition make an order that the delinquent juvenile shall remain under the supervision of a probation officer named in the order during such period, not exceeding three years, as may be specified therein, and may in such supervision order impose such conditions as it deems necessary for the due supervision of the delinquent juvenile: Provided that if at any time afterwards it appears to the Juvenile Court on receiving a report from the probation officer or otherwise, that the delinquent juvenile has not been of good behavious during the period of supervision or that the fit institution under whose care the juvenile was placed is no longer able or willing to ensure the good behavious and well being of the juvenile it may, after making such inquiry as it deems fit, order the delinquent juvenile to be sent to a special home. (3) The Juvenile Court making a supervision order under sub-section (2), shall explain to the juvenile and the parent, guardian or other fit person or fit institution, as the case may be, under whose care the juvenile has been placed, the terms and conditions of the order and shall forthwith furnish one copy of the supervision order to the juvenile, the parent, guardian or other fit person or fit institution, as the case may be, the sureties, if any, and the probation officer. (4) In determining the special home, or any person or institution to whose custody a juvenile is to be committed or entrusted under this Act, the Court shall pay due regard to the religious denomination of the juvenile to ensure that religious instruction contrary to the religious persuasion of the juvenile is not imparted to him. (27). Thus, Section 21 deals with the orders which are passed in relation to the delinquent juveniles, whereas Section 22 deals with the orders, which may not be passed against the delinquent. (28). As per the judgment of the Apex Court rendered in Raghbir vs. State of Haryana (5), even a person under 16 years of age and accused of offence of murder, can get the benefit of Children Act. (29). (28). As per the judgment of the Apex Court rendered in Raghbir vs. State of Haryana (5), even a person under 16 years of age and accused of offence of murder, can get the benefit of Children Act. (29). In Gopinath Ghosh vs. The State of West Bengal (6), the Supreme Court has held that whenever a case is brought before the Magistrate and the accused appears to be aged 21 years or below, before proceeding with the trial or undertaking an inquiry, an inquiry must be made about the age of the accused on the date of the occurrence. (But as per the latest decision of the Apex Court in Arnit Dass case (supra), the age of the accused is to be reckoned when the accused is brought before the Court for the first time). This ought to be more so where special Acts dealing with juvenile delinquent are in force. (30). It has been held in Bhoop Ram vs. State of U.P., (7), as under :- ``Since the appellant is now aged more than 28 years of age, there is no question of the appellant now being sent to an approved school under the U.P. Children Act for being detained there. In a somewhat similar situation, this Court held in Jayendra vs. State of U.P. ( 1981 (4) SCC 149 : ( AIR 1982 SC 685 ) that where an accused had been wrongly sentenced to imprisonment instead of being treated asa ``child under Sec. 2(4) of the U.P. Children Act and sent to an approved school and the accused had crossed the maximum age of detention in an approved school viz. 18 years, the course to be followed is to sustain the conviction but however quash the sentence imposed on the accused and direct his release forthwith. Accordingly, in this case also, we sustain the conviction of the appellant under all the charges framed against him but however quash the sentence awarded to him and direct his release forthwith. The appeal is therefore partly allowed in so far as the sentences imposed upon the appellant are quashed. (31). Accordingly, in this case also, we sustain the conviction of the appellant under all the charges framed against him but however quash the sentence awarded to him and direct his release forthwith. The appeal is therefore partly allowed in so far as the sentences imposed upon the appellant are quashed. (31). In Jayendra vs. State of U.P. (8), it has been held as under :- ``Taking into account the various circumstances on the record of the case we are of the opinion that the appellant Jayendra was a child within the meaning of this provisions on the date of the offence. Sec. 27 of the aforesaid Act says that notwithstanding anything to the contrary in any law, no court shall sentence a child to imprisonment for life or to any term of imprisonment. Sec. 2 provides, in so far as it is material, that if a child is found to have committed an offence punishable with imprisonment, the court may order him to be sent to as approved school for such period of stay as will not exceed the attainment by the child of the age of 18 years. In the normal course, we would have directed that the appellant Jayendra should be sent to an approved school but in view of the fact that he is now nearly 23 years of age, we cannot do so. (32). In Pradeep Kumar vs. State (9), the Supreme Court has held as under :- ``It is thus proved to the satisfaction of this Court that on the date of occurrence, the appellants had not completed 16 years of age and as such they should have been dealt with under the U.P. Children Act instead of being sentenced to imprisonment on conviction under Section 302/34 of the Act. Since the appellants are now aged more than 30 years, there is no question of sending them to an approved school under the U.P. Children Act for detention. Accordingly, while sustaining the conviction of the appellants under all the charges framed against them, we quash the sentences awarded to them and direct their release forthwith. (33). Since the appellants are now aged more than 30 years, there is no question of sending them to an approved school under the U.P. Children Act for detention. Accordingly, while sustaining the conviction of the appellants under all the charges framed against them, we quash the sentences awarded to them and direct their release forthwith. (33). In Bhola Bhagat vs. State of Bihar (10), the case under Bihar Children Act, relying on the decisions rendered in cases of Bhoop Ram, Jayendra and Pradeep Kumar (supra) it has been held that while sustaining the conviction of the appellants under all the charges, quashed the sentences awarded to accused. It was further held that each one of the appellants squarely fell within the definition of the expression `child. (34). So far as the age of the revisionist-petitioner is concerned, he was 15 years, 3 months and 10 days old when he was brought for the first time before the Court as per the judgment of the Apex Court in Arnit Dass case (supra). Therefore, as per Section 2(h) of the Act, he has not attained the age of 16 years, even on that date and was a juvenile for the purposes of the Act. The date of birth (dated 24.8.1966) of the accused has been proved from the record and Ex.P/22 medical report after inquiry. As per provisions of Section 22 of the Act, the period of detention, so ordered shall not exceed the maximum period of imprisonment, to which the juvenile could have been sentenced for the offence committed. But, the revisionist-petitioner has attained the age of 16 years even before the judgment of the Juvenile Court. Certainly, he is more than 36 years of age today. (35). The learned Public Prosecutor relied upon the decision of Arnit Das (supra) and Umesh Chandra vs. State of Rajasthan (11). As per the judgment of Arnit Dass case, the date for determining a person to be a juvenile, is the date when he has brought for the first time in the Court. In the case in hand, even when the revisionist-petitioner was brought before the Court, he was below 16 years of age. (36). As per the judgment of Arnit Dass case, the date for determining a person to be a juvenile, is the date when he has brought for the first time in the Court. In the case in hand, even when the revisionist-petitioner was brought before the Court, he was below 16 years of age. (36). It was argued by the learned Public Prosecutor that the decision of the Apex Court rendered in Arnit Dav vs. State of Bihar (supra) by two Honble Judges of the Apex Court is not in consonance with the earlier view rendered by the Court in Umesh Chandras case (quorum of three Judges), in which it has been held that the crucial date for determining the question whether a person is juvenile or not is the date when offence was committed and not when the accused first appears before the Court in inquiry proceedings. (37). In the considered opinion of the Court, the revision- petitioner was below 16 years of age and a child u/Sec. 2(f) of the Act on the date of commission of the offence, as evident from Ex.P/22. The alleged occurrence took place on 4/5.12.1981 and as stated earlier, undisputedly the date of birth of the revisionist-petitioner was 24.08.1966. Therefore, he was dealt under the provisions of Children Act, 1970 prevailing at that time. Hence, the argument of the learned Public Prosecutor is liable to be rejected and is hereby rejected. (38). Since the appellant is presently aged more than 36 years, there is no question of sending him now to an approved School under the Juvenile Justice Act for detention. Accordingly, while sustaining the conviction of the appellant under all the charges proved against him, the order of sending him to Approved Reformatory School is quashed. (39). The revision petition is partly allowed in the above terms.