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2004 DIGILAW 247 (RAJ)

Vikram @ Bangali v. State of Rajasthan

2004-02-20

FATEH CHAND BANSAL, SHIV KUMAR SHARMA

body2004
JUDGMENT 1. - The appellant Vikrarn @ Bengali was indicted before the learned Additional Sessions Judge Behror District Alwar in Sessions Case No. 17/1998 for having committed murder of Anand Kumar. Learned Judge vide judgment dated September 27, 1999 convicted and sentenced the appellant as under:- U/s 302 IPC To suffer Imprisonment for life and fine of Rs. 100/- in default to further suffer one month simple imprisonment. U/s 392 IPC To suffer Rigorous imprisonment for two years and fine Rs. 100/- in default to further suffer one month simple imprisonment. The sentences were ordered to run concurrently. 2. On the basis of written report (Ex.P-1) submitted on March 7. 1998 by Radhey Shyam (PW2) that the dead body of Anand Kumar was lying in the field of Nand Lai Aheer. Police Station Behror District Alwar registered a case under Section 302 IPC and investigation commenced. Dead body of Anand Kumar was subjected to autopsy, statements of witnesses under Section 161 Cr.PC. were recorded, appellant was arrested and at his instance the incriminating articles were recovered. On conclusion of investigation charge sheet was filed against the appellant. In due course the case came up for trial before the learned Additional Sessions Judge Behror District Alwar. Charges under Sections 302 and 392 IPC were framed against the appellant who denied the charges and claimed trial. The prosecution in support of its case examined as many as witnesses. in his explanation under Section 313 CrP.C., the appellant claimed innocence. No witness in defence was however examined. The learned Trail Judge on hearing final submissions convicted and sentenced the appellant as indicated herein above. 3. The findings of learned trial Judge have not been assailed by learned Amicus Curiae on merits. The only contention of learned counsel is that in view of Section 2(k) of the Juvenile Justice (Care and Protection of Children) Act 2000 (for short 'JJ Act') the appellant who was juvenile on the date of occurrence could not have been ordered to undergo imprisonment in view of Section 20 of the JJ Act. Learned counsel in support of his contention took us to the statement of Dr. B.L. Gupta (PW23) who was a Radiologist and examined the appellant on March 10, 1998. As per the Radiology Report (Ex.P28) the Efifysis of the right wrist and elbow of the appellant were not fused and appellant was below 17 years of age. Learned counsel in support of his contention took us to the statement of Dr. B.L. Gupta (PW23) who was a Radiologist and examined the appellant on March 10, 1998. As per the Radiology Report (Ex.P28) the Efifysis of the right wrist and elbow of the appellant were not fused and appellant was below 17 years of age. 4. Having considered the material on record we find that learned trial Judge in para No. 20 of the judgment observed that the age of the appellant was below 18 years of the age. The incident occurred on March 6, 1998 and from the statement under Section Section 313 CrP.C., which was recorded on September 1, 1999, it appears that though the appellant gave his age as 14 years but in the opinion of the learned trail Judge the appellant was between 17 and 18 years of age. We are thus of the view that the appellant was below 18 years of age on the date of incident. 5. The JJ Act came into existence with effect from April 1, 2001, Section 20 of the JJ Act provides special provision in respect of pending cases and speaks that notwithstanding anything contained in this Act, all proceedings in respect of a juvenile pending 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 Board which snail pass orders in respect of that juvenile in accordance with the provisions of this Act as if it had been satisfied on inquiry under this Act that a juvenile has committed the offence. 6. Sub Rule 2 of Rule 62 of the Juvenile Justice (Care and Protection of Children) Rules, 2001 (for short 'JJ Rules') provides that all pending cases which have not received finality shall be dealt with and disposed of in terms of the provisions of the JJ Act and the rules made thereunder. 7. Section 6 of the JJ Act provides that the Juvenile Justice Board shall deal exclusively with all proceedings under the JJ Act relating to juvenile. 7. Section 6 of the JJ Act provides that the Juvenile Justice Board shall deal exclusively with all proceedings under the JJ Act relating to juvenile. Sub section 2 of section 6 mandates that the powers conferred on the Board may also be exercised by the High Court and the Court of Sessions, when the proceeding comes before them in appeal, revision or otherwise. 8. As per Section 2(k) of the JJ Act 'Juvenile' or child means a person so has not completed eighteenth years of age. Juvenile in conflict with law in view of Section 2(1) means a Juvenile, who is alleged to have committed an offence. From the preamble of the JJ Act it appears that the said Act was enacted to consolidate and amend the law relating to juveniles in conflict with law i.e. Juveniles who are alleged to have committed the offence. Although the definition of 'Juvenile' does not indicate that this age is to be seen on the date of occurrence but from the intention of Legislature as appeared from the preamble we hold that the age is to be seen on the date of occurrence. Three Judge Bench of Hon'ble Supreme Court in Umesh Chandra v. State of Rajasthan, (1982) 2 SCC 202 , indicated that crucial date to determine whether the accused is a juvenile or not, is the date on which the offence was committed. 9. The instant appeal comes within the definition of pending cases in view of Rule 62(2) of the JJ Rules. As already noticed, the incident occurred on March 6, 1998 and the Radiologist Dr. B.L. Gupta examined the appellant on March 10, 1998. On the basis of radiology examination the age of the appellant was less than 18 years, therefore, it can safely be held that the appellant was juvenile on the date of the incident and in these circumstances the sentence awarded to the appellant cannot be upheld in view of Section as of the JJ Act, 10. Looking to the present age of the appellant which is about 23 years. we are of the opinion that he cannot be sent to the Observation Home established under Section 8 of the JJ Act for the purpose of rehabilitation and social integration of a juvenile. Looking to the present age of the appellant which is about 23 years. we are of the opinion that he cannot be sent to the Observation Home established under Section 8 of the JJ Act for the purpose of rehabilitation and social integration of a juvenile. Their Lordships of the Supreme Court in Jayendra and Another v. State of Uttar Pradesh, (1981) 4 SCC 149 pro pounded that where the accused who was a juvenile on the date of commission of offence has crossed 23 years of age, cannot be sent to an approved school in view of his age and, therefore, his conviction was although upheld but sentence quashed. 11. In yet another case Bhoop Ram v. State of U.P., (1989) 3 SCC 1 , their Lordships of the Supreme Court indicated in para 8 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." 12. For these reasons we partly allow the appeal. While maintaining the 10 conviction of the appellant under Sections 302 and 392 IPC, we set aside the sentence awarded to him. The appellant who is in custody shall be set at liberty forthwith, if not required to be detained in any other case.Appeal Partly Allowed. *******