Research › Search › Judgment

Kerala High Court · body

2004 DIGILAW 54 (KER)

Parameswaran v. State of Kerala

2004-02-11

J.M.JAMES, K.A.ABDUL GAFOOR

body2004
Judgment :- Abdul Gafoor, J. The father and his two sons were the accused persons in Crime No.358/1996 of Chalakudy Police Station. The younger among the sons was Juvenile. Accordingly, the appellants, the father and the elder son were tried by the Sessions Court. Both of them have been charged for the offence punishable under Section 302, 324 and 326 I.P.C. read with Section 34 I.P.C. The prosecution case was that at about 6.30 A.M. on 19.10.1996, they along with his younger son, pelted stone on the house of one Velandi. Velandi came out. The accused persons who were residing just the opposite side of the road separating the residence of the both, attacked with M.O.1 stick and beat on his head. PWs.1 to 4 and one Sandhya, the daughter of Velandi came out in succession. The accused persons, beat them as well. They also sustained injuries. All of them except PW.3 were taken to the hospital. At the hospital, it was found that Velandi was deed. The others were given treatment including the stitching of the wounds. There is a dispute as to whether they have been hospitalized or not. PW.1, brother of the deceased Velandi gave Ext.P1 F.I. Statement to PW.10 who registered the crime. P.W.9 conducted the investigation and laid charges. Appreciating the evidence on record, including the testimony of PWs.1 to 10, documents Exts.P1 to P20, and the material objects M.Os.1 to 9 identified during the trial, the trial court found that the accused persons were guilty of the offences punishable under Sections 302, 324 and 326 I.P.C. and were accordingly sentenced to undergo life imprisonment on the first count, three years rigorous imprisonment on the second count, and one year rigorous imprisonment on the third count. The trial court also found that they shared common intention in committing the offence. Thus, the conviction is under challenge in this appeal. 2. PWs.1 to 4 were the injured witnesses. It is submitted that they are only interested persons, being the close relatives of the deceased Velandi viz., the brother, father, wife and sister-in-law. Therefore, they ought not have been simply believed in the absence of corroboration by an independent witness, especially, when Ext.P1 F.I. Statement discloses that other persons had also arrived at the scene of occurrence. So, the conviction based on the testimony of the interested witnesses PWs.1 to 4 cannot be sustained, the appellants submit. Therefore, they ought not have been simply believed in the absence of corroboration by an independent witness, especially, when Ext.P1 F.I. Statement discloses that other persons had also arrived at the scene of occurrence. So, the conviction based on the testimony of the interested witnesses PWs.1 to 4 cannot be sustained, the appellants submit. They further contended that accused 1 and 2 were not in station, and they have gone for a festival in a temple. The Juvenile in conflict with law, the 3rd accused in the crime, alone was present in their house. At that time, the injured party had pelted stones. He came outside and there was alteration. It was during such alteration that the said incident had happened. It is further contended that the incident as really happened had not been disclosed to the court. The genesis of occurrence is also withheld from the court. Pointing out the evidence of PW.3, it is submitted that she had been inside the house engaged in cooking. Her daughter Sandhya, one among the injured had given tea to the said Velandi. But it is clear from Ext.P4 post mortem certificate issued by PW.6 that the stomach of the injured was empty. Therefore, the story of giving tea and accordingly the entire deposition of PW.3 cannot be believed. There was no chance as to she having witnessed the incident as spoken to before the court below. 3. There is a further contention that as noted by PW.9 in the scene mahazar Ext.P8, the window glass-pane of the house of the accused had been broken. So, the incident had started when the injured party had pelted stones on their house. There was a reason for that also. The said Velandi was conducting a poultry farm, which emanated pollution in the locality. It has been enquired by the complained of the by the accused and others in the locality. It has been enquired by the competent authority just the previous day. It was because of the enmity aroused out of such complaint that they had pelted stones and broken the window. It was at that time, the 3rd accused came out. If at all, all the accused were present, then the plea of private defence is manifest on record. In such circumstances, there may not have any ground to sentence them for the offence of culpable homicide amounting to murder, the appellants submit. It was at that time, the 3rd accused came out. If at all, all the accused were present, then the plea of private defence is manifest on record. In such circumstances, there may not have any ground to sentence them for the offence of culpable homicide amounting to murder, the appellants submit. 4. It is further contended that going by Ext.P4, the real cause of death was internal injury caused as a result of injury Nos.1 to 4 and 11 mentioned in Ext.P4. That internal injury was to the head. Which among the injuries had caused that internal injury which became fatal is not disclosed in Ext.P4, nor by PW.6. Therefore, it cannot be contended that both the accused is guilty of murder as nothing is discernible as to whose blow was fatal to cause that injury. Therefore, on that count, it was not a case to merit conviction under Section 302 I.P.C., even if the incident is said to be proved by the prosecution. 5. As already mentioned above, the occurrence was at 6.30 A.M. on 19.10.1998. It was just the dusk time. Therefore, there was no possibility of anyone else being witnessing the occurrence. Of course Ext.P1 F.I. Statement given by PW.1 indicates that other persons have also come and seen the incident. That is only an embellishment as normal in any case. Therefore, much importance cannot be given to that version in Ext.P1 F.I. Statement. Except a suggestion from the witnesses as to whether the incident occurred inside the compound of the accused persons, no question has been asked as to whether any of them had pelted stone on the house of the accused persons. Scene Mahazar prepared by PW.9 was at about 2.00 P.M. on the date of occurrence. Of course, he has noticed the broken window panes. Merely because of that, it cannot be taken that the deceased persons had pelted stones. 6. On the other hand, the evidence given by PW.3. wife of the deceased Velandi, was that she heard the sound of pelted stones falling on the roof top. Her husband went outside. She came out hearing the cry of her husband, and had seen her husband crying with his hands on his head. She had also seen Accused 1 and 2 beating with wooden sticks on her husband. When she attempted to intervene the first accused had beaten herself as well. Her husband went outside. She came out hearing the cry of her husband, and had seen her husband crying with his hands on his head. She had also seen Accused 1 and 2 beating with wooden sticks on her husband. When she attempted to intervene the first accused had beaten herself as well. Her daughter Sandhya also came out. At that time, the second accused also had beaten her daughter Sandhya. None other than PW.3 had heard the sound of stone pelting. Obviously so because she was the only inmate in that house. PWs.1 and 2 are admittedly residing in the nearby house, and therefore, there was no chance of they hearing such a sound and stone pelting on the roof top of house of the deceased Velandi. 7. Of course, PW.3 is the wife of the deceased person. She was the inmate of the house where the poultry farm was conducted by the deceased person. Therefore, her version has to be considered cautiously and carefully. In this regard, the evidence of P.W.1. the brother of the deceased, also is relevant. According to him, he also had come to the place of occurrence, hearing the noise and had seen Accused 1 and 2 attacking the deceased on his head with wooden sticks. He further deposed that Accused 1 and 2 had also attacked himself as well. He had also seen them attacking PW.3 and her daughter Sandhya. He has also deposed that PW.2, his father, had also come to the scene of occurrence apart from PW.4, the wife of PW.1. Thus, the occurrence described by PW.1 is corroborated by the evidence of PW.3 as well. Merely because he is the brother of the deceased person, there is no reason to disbelieve his version. 8. PW.2 is the father of the deceased as well as P.W.1. According to him, he heard the cry and came to the spot of occurrence, and had seen Accused No.1 attacking the deceased on his head. He had also seen the second accused inflicting similar injury on the deceased person. He had also seen the first accused attacking PW.2. He further stated that he had seen PW.1 crying putting hands on his head. PW.4 is the wife of PW.1. She has also seen the incident. She has also been attacked by the first accused. Thus there is total corroboration in every respect. 9. He had also seen the first accused attacking PW.2. He further stated that he had seen PW.1 crying putting hands on his head. PW.4 is the wife of PW.1. She has also seen the incident. She has also been attacked by the first accused. Thus there is total corroboration in every respect. 9. M.Os.1 and 2 also had been recovered. Those were identified during the trial. PW.6, the Doctor, had also opined that the injury sustained by the deceased could have been caused by M.Os.1 and 2 and the injury so sustained were fatal, and was the cause of the death. He further stated that the death was caused as a result of injury Nos. 1 to 4 and 11 mentioned in Ext.P4 and as a result of the corresponding injury, namely, injury No.16. Thus, based on the evidence on record, it is clear that both the accused 1 and 2 had inflicted the said injuries, and was therefore guilty of the offence punishable under Section 302 I.P.C. for having committed the murder of the said Velandi. 10. Ext.P3 is the wound certificate in respect of PW.1 issued by PW.5. Ext.P2 is the another would certificate issued by PW.5 in respect of PW.2. Exts.P6 and P7 are the wound certificates issued by PW.7 in respect of PW.4 and Sandhya, the daughter of PW.3. PW.3 never went to the hospital. Those injuries also could be caused by M.Os.1 and 2. There is no reason, as already mentioned above, to disbelieve PWs.1 to 4. There evidence is mutually corroborative as well. Therefore, it has thus been proved that they have inflicted injuries on PWs.1, 2 and 4 and Sandhya, the daughter of PW.3. Moreover, as spoken to by PW.3, the accused persons have inflicted injury on her as well. Therefore, the conviction under Sections 326 and 324 shall also have to be upheld. 11. Both the accused persons had been with M.Os.1 and 2 weapons respectively, and the injuries inflicted by them on the deceased person was on the head. Their intention was also manifest. Therefore, they did share common intention to commit the offence. Thus, the conviction ordered by the court below has to be sustained in every respect. Therefore, the contention that the offence did not fall under Section 302 I.P.C., at least in respect of first accused, cannot be accepted. 12. Their intention was also manifest. Therefore, they did share common intention to commit the offence. Thus, the conviction ordered by the court below has to be sustained in every respect. Therefore, the contention that the offence did not fall under Section 302 I.P.C., at least in respect of first accused, cannot be accepted. 12. The plea of alibi has never has been substantiated in this case. On the other hand, when the witnesses, as mentioned above, are believed, the presence of the accused persons is conclusively proved. When the injuries have resulted in death, and when the injuries are on the head, there arises no question of escaping the conviction under Section 302 I.P.C. as contended by the counsel. Accordingly, the conviction is upheld. 13. The post mortem certificate indicated that the stomach of the deceased was empty. It is true that the wife of the deceased, as spoken to by her, had asked her daughter to give some tea to Velandi. But, there is no evidence to show that he had taken the tea before he went outside hearing the voice of pelting stones. So, that aspect has no relevance at all. 14. When the conviction is so upheld, necessarily, the sentence also has to be upheld. But there is a plea that the second accused was a Juvenile. Therefore, we have to consider this aspect next. 15. Is the second accused entitled to the benefit of the Juvenile Justice (Care and Protection of Children) Act, 2000? The second accused was produced for the first time before the Children’s Court established under the 1986 Act, on 4.11.1996. At that time, he had already completed 17 years of age, his date of birth being 6.10.1979. Therefore, that court did not act upon the remand report. He was later produced before a Judicial Magistrate. Going by the decision reported in Arnit Das v. State of Bihar ((2000) 5 SCC 488), the relevant date to consider as to whether one is Juvenile or not is the date of production before the authority concerned, in this case, 4.11.1996. The law then in force in respect of Juvenile was the Juvenile Justice Act, 1986. As per Section 2(b) thereof. Juvenile means “a boy who has not attained the age of 16 years or a girl who has not attained the age of 18 years.” The second accused was a boy. The law then in force in respect of Juvenile was the Juvenile Justice Act, 1986. As per Section 2(b) thereof. Juvenile means “a boy who has not attained the age of 16 years or a girl who has not attained the age of 18 years.” The second accused was a boy. He had crossed, on the said date, 17 years of age. So, going by the law then in force, he was not a Juvenile. Accordingly, he was tried by the Sessions Court. The trial started on 26.11.1998 by which time he had already crossed the age of 18 years as well. 16. The trial was completed and the judgment was pronounced finding him guilty on 25.1.2002. By that time, the Juvenile Justice Act, 1986, has been repealed and a new enactment, the Juvenile Justice (Care and Protection of Children) Act, 2000, had been enforced with effect from 1.4.2001. This new Act will, hereafter, be referred to as “The Act of 2000”. 17. The Act of 2000 was one to consolidate and amend the law relating to juveniles in conflict with law and children, in tune with Convention on the Rights of the child adopted by the United Nations on 20.11.1989, and to be in conformity with the United Nations Standard Minimum Rules for the Administration of Juvenile Justice, 1985 (the Beijing Rules). One among the object of enforcement of this Act was to prescribe a uniform age of 18 years for both boys and girls. Section 2(k) gives a revised definition to “juvenile” as ‘a person who has not completed eighteenth year of age’. This Act has enforced, as mentioned above, while the trial of the case was pending. One among the object of enforcement of this Act was to prescribe a uniform age of 18 years for both boys and girls. Section 2(k) gives a revised definition to “juvenile” as ‘a person who has not completed eighteenth year of age’. This Act has enforced, as mentioned above, while the trial of the case was pending. Section 20 thereof contain special provision in respect of pending cases, providing that, “all proceedings in respect of 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 Board which shall 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.” 18. It is contended that the new Act had been introduced during the pendency of the trial of the case. As the second accused had not completed 18 years of age on the date of his production before the court, Section 20 ought to have been applied in his case. Continuing the trial along with the first accused, on finding him guilty, he ought to have been sent to the Juvenile Justice Board constituted under Section 4 of the Act. A juvenile could not have been sentenced to undergo imprisonment much less life imprisonment. He ought to have been dealt with in the light of the provisions under the Act of 2000, it is submitted. 19. It is contended by the learned Public Prosecutor that whether one is a Juvenile or not has to be considered based on the date of his production before the authority. When the second accused was produced before the court on 4.11.1996, the law then stood, viz., Juvenile Justice Act, 1986, alone could be pressed into service. It provides that only the boys below the age of 16 shall be considered as Juvenile. By the time Act of 2000 had been enforced, he had crossed the age of 18 years as well in 1.4.2001. The Act of 2000 cannot be of any avail to him. It provides that only the boys below the age of 16 shall be considered as Juvenile. By the time Act of 2000 had been enforced, he had crossed the age of 18 years as well in 1.4.2001. The Act of 2000 cannot be of any avail to him. So, there arise no question of interfering with the sentence, the learned Public Prosecutor contends. 20. As already noted above, the Act of 2000 was enforced to make the law relating to Juvenile Justice in India to be in conformity with the standards prescribed in the Convention on the Rights of the Child, the United Nations Standard Minimum Rules for the Administration of Juvenile Justice, 1985 (the Beijing Rules), and also to prescribe uniform age of 18 years for both boys and girls. Going by 1986 Act, he may not a Juvenile. Therefore, he could have been tried by an ordinary court for the offence charged against him, though he had not completed the age of 18 years on his production before the court. During the trial, the Act of 2000 has been enforced. Therefore, he had a say, when found guilty, with reference to the sentence, referring to the provisions of law relating to the Juvenile Justice prevailing as on the date of sentence, viz., 25.1.2002. Based on the decision reported in Arnit Das v. State of Bihar ((2000) 5 SCC 488), whether one is a Juvenile or not has to be considered, at that time, with reference to the date of his production before the Court, applying the provision in the Act of 2000, the counsel contends. 21. In the said decision, the Supreme Court has noticed that the term Juvenile Justice before the onset of delinquency may refer to social justice. After the onset of delinquency, it refers to justice in its normal juridical sense. Juvenile Justice Act provides for justice after the onset of delinquency. The Act aims at laying down a uniform juvenile justice system in the country avoiding lodging in jail or policy lock-up of the child; and provides for treatment of juvenile delinquency for care, protection, etc. Therefore, the provision in the Act has to be construed in the above general perspective. The object of the Act and principles as is seen from the statement of objects and reasons is to prescribe a uniform age of 18 years for both boys and girls. Therefore, the provision in the Act has to be construed in the above general perspective. The object of the Act and principles as is seen from the statement of objects and reasons is to prescribe a uniform age of 18 years for both boys and girls. So, when the date of production of the incumbent is considered, with reference to the date of sentence, applying the law then in force, it has to be held that the second accused was a juvenile going by Act of 2000, which was prevalent as on the date of sentencing. 22. A person who had not been a Juvenile, as per the Act of 1996, and tried by an ordinary court and sentenced, if found be a Juvenile, on enforcement of the Act of 2000, shall have to be sent out of the jail, to be dealt with in accordance with the Act of 2000. It is so provided in Section 64 of the Act of 2000, which reads as under. “64. Juvenile in conflict with law undergoing sentence at commencement of this Act – In any area in which this Act is brought into force, the State Government or the local authority may direct that a juvenile in conflict with law who is undergoing any sentence of imprisonment at the commencement of this Act, shall, in lieu of undergoing such sentence, be sent to a special home or be kept in fit institution in such manner as the State Government or the local authority thinks fit for the remainder of the period of the sentence; and the provisions of this Act shall apply to the juvenile as if he had been ordered by the Board to be sent to such special home or institution or, as the case may be, ordered to be kept under protective care under sub-section (2) of section 16 of this Act.” 23. Thus, a person who had been tried as not a Juvenile and sentenced for imprisonment, being not a Juvenile in terms of Act, 1986, may get the benefit of Act of 2000, in spite of termination of the trial and suffering of imprisonment in part ordered by a Court. Thus, a person who had been tried as not a Juvenile and sentenced for imprisonment, being not a Juvenile in terms of Act, 1986, may get the benefit of Act of 2000, in spite of termination of the trial and suffering of imprisonment in part ordered by a Court. In such circumstances, necessarily, the provisions of the Act of 2000, also have to be applied, in respect of a person who had not been Juvenile at the time of the commencement of the trial, but coming within that term, before the termination of the trial. Benefit, which could be given to a convict shall also be extended to an under-trial as well. Therefore, the contention of the learned Public Prosecutor that whether the second accused was a Juvenile shall be dealt with in terms of the provisions contained in 1986 Act, cannot be accepted. Of course, for the commencement of the trial 1986 Act has to be applied, but as the Act of 2000 has been enforced, before its termination, necessarily, when the sentence was imposed, the trial court was bound to follow the provisions contained in the Act of 2000. 24. As per Section 16(1) of Act of 2000, a Juvenile cannot be sentenced to death or life imprisonment or committed to prison in default of payment of fine or in default of furnishing security. In respect of pending cases, going by Section 20, after having convicted, a juvenile has to be forwarded to the Board which shall pass orders in respect of that Juvenile in accordance with the provisions of the Act of 2000, as if it had been satisfied on enquiry under the Act that the Juvenile had committed the offence. Therefore, rather than imposing a punishment, the court below ought to have forwarded the second accused to the Board. 25. This being an appeal, necessarily, going by the provisions contained in sub-section (2) of Section 5 of the Act of 2000, this Court can also exercise powers conferred on the Board. The said provision reads as follows:- “6. Therefore, rather than imposing a punishment, the court below ought to have forwarded the second accused to the Board. 25. This being an appeal, necessarily, going by the provisions contained in sub-section (2) of Section 5 of the Act of 2000, this Court can also exercise powers conferred on the Board. The said provision reads as follows:- “6. Powers of Juvenile Justice Board:- (1) ………… (2) The powers conferred on the Board by or under this Act may also be exercised by the High Court and the Court of Section, when the proceeding comes before them in appeal, revision or otherwise.” So, while considering this appeal, this Court also has to exercise powers conferred on the Board as regards the second accused. 26. What shall be done in respect of a Juvenile who is in conflict with law, is dealt with in Section 15. This Court can, therefore, adopt any of the courses of action as mentioned in ‘sub-section (1) of Section 15, which reads as under, “15. 26. What shall be done in respect of a Juvenile who is in conflict with law, is dealt with in Section 15. This Court can, therefore, adopt any of the courses of action as mentioned in ‘sub-section (1) of Section 15, which reads as under, “15. Order that may be passed regarding juvenile:- (1) Where a Board 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 Board may, if it so thinks fit,- (a) allow the juvenile to go home after advice or admonition following appropriate inquiry against and counseling to the parent or the guardian and the juvenile; (b) direct the juvenile to participate in group counseling and similar activities, (c) order the juvenile to perform community service; (d) order the parent of the juvenile or the juvenile himself to pay a fine, if he is over fourteen years of age and earns money; (e) 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 the Board may require, for the good behaviour and well-being of the juvenile for any period not exceeding three years; (f) direct the juvenile to be released on probation of good conduct and placed under the care of any fit institution for the good behaviour and well-being of the juvenile for any period not exceeding three years; (g) make an order directing the juvenile to be sent to a special home, - (i) in the case of juvenile, over seventeen years but less than eighteen years of age for a period of not less than two years; (ii) in case of any other juvenile for the period until he ceases to be a juvenile. Provided that the Board 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 of such period as it thinks fit.” But before passing any order, sub-section 2 of Section 15 obliges that, “The Board shall obtain the social investigation report on juvenile either through a probation officer or a recognized voluntary organization or otherwise, and shall take into consideration the findings of such report before passing an order.” Therefore, it is necessary to get a social investigation report on the Juvenile through the Probation Officer. Therefore, we direct the District Probation Officer, Thrissur, to file a report before this Court on the Juvenile, viz., the second appellant in this case, within a period of one month. We will consider as to what course of action, shall be taken in respect of the second accused, on receipt of the said report under Section 15(2) of the Act of 2000. 27. Accordingly, the conviction of both the appellant/accused is confirmed. The sentence passed on the first appellant is also confirmed. The sentence passed on the second appellant is set aside. The conditions in the bail bond already executed by the second accused shall continue to be in force until further orders. Post after getting the report of the District Probation Officer. Thrissur, for appropriate orders to be passed against the second appellant. ORDER Abdul Gafoor, J. The conviction of the second appellant in the appeal has been upheld in our judgment-dated 11.2.2004. But, it has been found that the second accused/second appellant has been a juvenile at the relevant time. Hence, he cannot be sent to prison. In such a situation, a report had to be obtained from the District Probation Officer concerned to pass appropriate orders. Accordingly, while pronouncing the judgment, we directed the District Probation Officer, Thrissur to file a report so as to enable us to pass appropriate orders. 2. Now, the District Probation Officer, Thrissur has submitted a report dated 17.5.2004 stating that, in enquiry, including with the teachers of the second accused, it was revealed that his case seems to be a genuine one to be considered under the benevolent provisions of the Juvenile Justice (Care and Protection of Children) Act, 2000. 3. 2. Now, the District Probation Officer, Thrissur has submitted a report dated 17.5.2004 stating that, in enquiry, including with the teachers of the second accused, it was revealed that his case seems to be a genuine one to be considered under the benevolent provisions of the Juvenile Justice (Care and Protection of Children) Act, 2000. 3. We have also heard the counsel for the second accused/second appellant. We could gather that the second accused is conducting a small-scale industry of making garments. 4. Taking into account the aforesaid situation, we order as follows: (a) The second appellant/second accused shall, on every Wednesday and Saturday, perform community service, working as a sweeper for 8 hours each on those days, with an interval of one hour for lunch break and rest, in the Medical College Hospital, Thrissur. (b) The Superintendent of the Medical College, Hospital, Thrissur shall assign necessary duties to him and he shall act on the direction of the Superintendent. As the District Probation Officer has, in his report, made it clear that he shall be put under his supervision for a period of three years, this arrangement shall continue for a period of 3 years. (c) The Superintendent, to whom a copy of this order shall be communicated, shall send a tri-monthly report to this court about the performance of the second accused, with a copy to the District Probation Officer, Thrissur, who shall take appropriate necessary action whenever necessary. (d) The District Probation Officer shall also send a report to this court, as and when he feels necessary, at any rate, once in six months. The aforesaid arrangement is in lieu of the sentence already passed.