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2005 DIGILAW 585 (CAL)

NISHI ROY v. STATE OF WEST BENGAL

2005-08-30

ALOK KUMAR BASU, PRANAB KUMAR DEB

body2005
BASU, J. ( 1 ) NISHI Roy, the juvenile delinquent, being convicted under section 302 of the I. PC. by the learned Sessions Judge, Purulia on 27th May, 1997 in connection with Sessions Trial No. 15 of 1996 corresponding to sessions Case No. 105 of 1996 was ultimately sentenced to suffer detention for life in lieu of sentence of imprisonment for life and the learned Sessions judge directed the Purulia Jail authority to keep the delinquent in segregating from other habitual offenders. ( 2 ) NISHI Roy has been serving his sentence for a considerable period of time and subsequently being transferred to Midnapur Central Jail, he preferred an appeal through the Jail authority which gave birth to the present criminal appeal being 227 of 1997. ( 3 ) THE prosecution case leading to the starting of the sessions trial before the learned Judge, Purulia was in brief that on 13th January, 1994 at pat Jhalda under the PS. Jhalda in the district of Purulia, the delinquent took one Rajesh Goswami, aged three and half years and one Mahima Roy, aged about 5 years respectively, in a nearby jungle with the allurement of giving them plums (kool ). Both the innocent children on good faith accompanied the delinquent and the delinquent coming in the jungle and finding an abandoned well nearby, threw both the children inside the said well and had left the place. ( 4 ) WHEN the parents of both Rajesh and Mahima would not find their child, they started vigorous search and ultimately they came near the well and being attracted with the alarming sound coming from inside the well, the father of Rajesh with the help of rope prepared out of the saries of two women went inside the well and rescued both Rajesh and Mahima. Unfortunately Rajesh was pronounced dead and Mahima after necessary medical treatment regained her sense and narrated the horrifying incident that the delinquent took both her and Rajesh near the well and ultimately threw both of them inside the well. ( 5 ) ON the basis of the written statement of Panchanan Goswami, the unfortunate father of Rajesh, Jhalda P. S. instituted a case and after collection of all the materials, charge-sheet was submitted against the delinquent under section 302 of the Indian Penal Code. ( 5 ) ON the basis of the written statement of Panchanan Goswami, the unfortunate father of Rajesh, Jhalda P. S. instituted a case and after collection of all the materials, charge-sheet was submitted against the delinquent under section 302 of the Indian Penal Code. ( 6 ) DURING trial before the learned Judge, the prosecution side produced as many as 13 witnesses to substantiate the charge against the delinquent which included Mahima, the P. W. 1, Panchanan Goswami, P. W. 5 and the doctor who conducted the P. M. Examination, P. W. 12 and that apart the prosecution also examined two police officers who conducted investigation and some local witnesses who were present at the time of rescue operation and also at the time of holding inquest over the dead-body of Rajesh. ( 7 ) THE learned Judge having regard to the evidence of P. W. 1, Mahima, along with her statement given before the learned Judicial Magistrate under section 164 of the Cr. P. C. found no difficulty to rope the delinquent under section 302 of the I. P. C. and the learned Judge found sufficient corroboration of the statement of Mahima through the statement of P. W. 5, Panchanan, the father of Rajesh. ' ( 8 ) HAVING found the delinquent guilty under Section 302 of the I. P. C. and having convicted him there under, the learned Judge instead of passing an order of life imprisonment, following the relevant provision of the Juvenile justice Act, 1986, directed the delinquent to be sent to a home for detention for life and the learned Judge in his order directed the Purulia Jail authority or any other jail to keep the delinquent in segregation from other habitual offenders. ( 9 ) WE have already stated that the delinquent has been serving the sentence since 1994. ( 10 ) APPEARING for the delinquent, Mr. Dastoor has made two-fold submissions before us in support of the appeal. Mr. Dastoor contends, first of all, that having regard to the provision of Juvenile Justice Act, 1986, the entire order of sentence recorded by the learned Sessions Judge was absolutely without any sanction of law and on this ground alone, the impugned judgment and order should be set aside and the delinquent should be set at free. Mr. Mr. Dastoor contends, first of all, that having regard to the provision of Juvenile Justice Act, 1986, the entire order of sentence recorded by the learned Sessions Judge was absolutely without any sanction of law and on this ground alone, the impugned judgment and order should be set aside and the delinquent should be set at free. Mr. Dastoor also contends that so far as conviction of the delinquent under Section 302 of the I. PC. is concerned, an impartial analysis of the evidence does not support such conviction. ( 11 ) MR. Dastoor on the point of sentence has submitted further that if it is accepted from the correct interpretation of the provision of the Juvenile justice Act, 1986 that a delinquent cannot be kept in detention for more than 3 years or beyond the age of 18, the present delinquent, already suffered imprisonment for more than years and he is entitled to get the benefit of immediate freedom. ( 12 ) MR. Dastoor has also raised another important question regarding the power of the Jail authority to change the place of detention once decided by the learned Judge without getting further permission from the learned gourt as has been done in the present case. Mr. Dastoor submit that the order of the learned Judge was specific that the delinquent should be kept in the Purulia Jail in segregation treating Purulia Jail as a safe custody for the purpose of the delinquent and the said Jail authority had no power to transfer the delinquent to Midnapore Central Jail since there was no order from the learned Court declaring Midnapore Central Jail as a safe custody for the delinquent. ( 13 ) MR. Ghosal appearing for the State-respondent finds no reason to disagree with the submission of Mr. Dastoor made on the point of sentence and Mr. Ghosal in this regard to facilitate our discussion has rightly referred to a decision of this Bench delivered in the case of Prem Das @ Prema v. State of West Bengal (Criminal Appeal No. 164 of 2001), where almost identical question of law relating to the power of a Judge deciding the case of a juvenile delinquent came up for consideration. ( 14 ) MR. ( 14 ) MR. Ghosal with reference to the ratio of the decision in the case of Prem @ Prema (supra) submits that this Bench has already decided on hearing the learned Public Prosecutor High Court, that under the Juvenile justice Act, 1986, a delinquent juvenile can never be kept in detention for more than three years or beyond the age of 18 years. Mr. Ghosal also contends that in the same judgement it was also specifically held that the learned trial Court had no power or jurisdiction to decide any jail as safe custody under the provisions of the Juvenile Justice Act, 1986 but what the learned trial Court is supposed to do is to refer the matter to the State government which in its turn shall declare any place as a safe custody through proper Government notification and only in that safe custody, the delinquent will be sent for his detention. Mr. Ghosal contends that in this particular case the learned Judge without referring the matter to the State government declared Purulia Jail as safe custody which was not the correct position of law and for that reason also the order of detention cannot be supported. ( 15 ) HOWEVER, on the question of conviction of the delinquent under section 302 of the I. PC. , Mr. Ghosal has supported the impugned judgment contending, inter alia, that in this peculiar case the best evidence was through the statement of Mahima, the P. W. 1, who was also a victim and that Mahima by most unambiguous and clear term narrated how she and Rajesh were thrown into the well by the delinquent and Mr. Ghosal contends that from the evidence on record we find no reason to disbelieve the testimony of Mahima and on the basis of the testimony of Mahima alone the order of conviction can be supported. ( 16 ) WE have considered the submissions of both Mr. Dastoor and Mr. Ghosal and we have also examined the evidence on record along with the judgment and order impugned in the appeal. ( 17 ) WE shall take up first the question whether the delinquent was rightly convicted under Section 302 of the I. P. C. It was the submission of Mr. Dastoor and Mr. Ghosal and we have also examined the evidence on record along with the judgment and order impugned in the appeal. ( 17 ) WE shall take up first the question whether the delinquent was rightly convicted under Section 302 of the I. P. C. It was the submission of Mr. Dastoor that having regard to the evidence of the prosecution side as a whole there appears enough contradiction in the statement of the vital witnesses and that apart there is no convincing independent evidence to indicate that the delinquent was really responsible for throwing both the children in the well and resulting the death of Rajesh. ( 18 ) WE have examined the evidence of Mahima carefully along with her statement recorded under Section 164 of the Cr. P. C. Form the fact and evidence on record we find that both the children were taken to a distant jungle and there they were thrown in the well and considering the topography as we gather from the evidence, we consider it totally impossible that both the children would take a jump inside the well out of their childlike curiosity. ( 19 ) WHEN we find that there was no question of accidental fall of the children in the well, a reasonable question would arise-how and by whom they could be thrown in the well-and at this juncture the evidence of one of the surviving victim would assume supreme importance and Mahima is the surviving child. ( 20 ) 1t is the established position of law that although there is risk in accepting the evidence of child witness, but, if the learned trial Court which had the occasion to examine the demeanour of the child witness and which had the occasion to satisfy itself about the general intelligence of the child witness, records the statement of the child witness being satisfied about the overall intelligence of the child witness, there remains no reasonable ground to discredit the child witness. ( 21 ) IN this particular, case, the child witness herself was a victim of the circumstances and when she regained her sense, at the first blush mentioned the name of the delinquent, we cannot question the credibility of the statement and, more so, when she sticked to the statement even before the learned Judicial Magistrate and making such statement at the police station mentioning the name of the delinquent as the culprit who threw both the children in the well. ( 22 ) THUS, having regard to the evidence on record, we cannot subscribe to the view expressed by Mr. Dastoor, but, we are in total agreement with the learned Judge that it was the delinquent who was guilty of the charge of murder of Rajesh and accordingly we affirm the order of conviction of the delinquent under Section 302 of the I. P. C. ( 23 ) NOW, we shall come to the vital part of our judgment relating to the order of conviction. We are really grateful to Mr. Ghosal that he has rightly referred to the ratio of the decision in the case of Prem Das @ Prema (supra), where the similar question was raised as to the power and authority of a Judge dealing a delinquent regarding the actual order of sentence to be imposed against such delinquent. ( 24 ) WE notice with great pain that the delinquent has already served about 11 years of imprisonment almost like an ordinary criminal. The spirit of the Juvenile Justice Act was that a juvenile delinquent shall not be treated at par with the ordinary criminal and the highest legislature of the land expressed the same view while drafting Juvenile Justice Act of 2000 where we also find incorporation of the identical sections and clauses of the previous Juvenile justice Act, 1986. ( 25 ) IT has been specifically provided in the Juvenile Justice Act that like ordinary criminal, delinquent can never be sent to suffer life imprisonment or can never be sentenced for death. It has been further provided in the said act how a delinquent shall be dealt with where it is found from evidence that he is guilty of heinous crime. It has been further provided in the said act how a delinquent shall be dealt with where it is found from evidence that he is guilty of heinous crime. ( 26 ) IN the case of Prem Das @ Prema, it was held, inter alia, that a delinquent cannot be sentenced for detention more than three years or beyond the age of 18 years whatever heinous crime he might have committed. It was further held that before sending a delinquent to safe custody, the learned trial court must refer the matter to the State Government and the State Government must declare a particular place as safe custody through the Government notification and only in that place alone the delinquent can be kept for the period of detention. ( 27 ) IN this particular case, the learned Judge did not refer the matter to the State Government which was mandatory for declaration of a place as safe custody. The learned Judge also sent the delinquent to safe detention for life in total violation of the mandatory provision of the Act and on both these score, the order of sentence appears to be void abinitio. ( 28 ) MR. Dastoor has raised an important question as to the fact that where a delinquent during trial already suffered detention for more than three years, whether that question could have been ignored while passing the final order of sentence after trial and in this particular case the delinquent already suffered three years of imprisonment and before the pronouncement of the judgment the learned Judge did not consider this aspect. Mr. Dastoor has also raised a question whether the Purulia Jail authority had any power to transfer the delinquent from Prurulia Jail to Midnapore Central Jail without previous order of the learned trial Court. We find sufficient merit in both the contentions of Mr. Dastoor and we acknowledge his service while raising this question which would be a point for evidence to the learned trial Court. We find sufficient merit in both the contentions of Mr. Dastoor and we acknowledge his service while raising this question which would be a point for evidence to the learned trial Court. ( 29 ) IF in a trial, it is found that the delinquent already suffered detention covering the period of three years without getting bail at the investigation stage, after trial, if the delinquent is found guilty of any heinous crime, he cannot be sent to further term of detention and the learned trial Court must mention this point and set delinquent free immediately, otherwise, a single day's detention would amount to illegal detention and curtailment of the fundamental Right of a citizen. ( 30 ) ONCE a Court with prior concurrence of the State Government declares a prison as safe custody, the prison authority of that area shall have no power to transfer the delinquent to any other jail without prior approval of the State Government and the learned trial Court and if the Jail authority indulges in such action, that will be a gross abuse of the process of law and also a ground of contempt of Court requiring appropriate action against the jail Authority. ( 31 ) WE feel that the entire exercise which we have now taken would appear to be futile academic exercise, since, we are not in a position to return the period of illegal detention already suffered by the delinquent. But, we get consolation that only with the able assistance of both Mr. Dastoor and Mr. Ghosal we have prevented further abuse of the process of law by directing immediate release of the delinquent from the clutches of the jail which was to his abode after punishment. ( 32 ) ACCORDINGLY, we allow this appeal in part and while upholding the order of conviction, we quash the order of sentence. ( 33 ) WE direct the Superintendent of Midnapore Central Jail to release the delinquent Nishi Roy immediately, if he is not wanted in connection with any other case. ( 34 ) SEND a copy of this judgment and order through special messenger at the cost of the Government to the Superintendent, Midnapore Central Jail for immediate compliance of this order. ( 35 ) LET a copy of this judgment along with the L. C. R. be transmitted to the learned trial Court for information and guidance. ( 34 ) SEND a copy of this judgment and order through special messenger at the cost of the Government to the Superintendent, Midnapore Central Jail for immediate compliance of this order. ( 35 ) LET a copy of this judgment along with the L. C. R. be transmitted to the learned trial Court for information and guidance. ( 36 ) LET there be a direction upon the Registrar (Administration), High court to send copies of this judgment and order to all the learned Sessions judges of all the districts of West Bengal for information and future guidance. The Registrar (Administration), High Court is also directed to send a copy of this judgment and order to the Inspector-General of Prisons, Government of west Bengal for his information and guidance. Copy of this judgment and order shall be circulated among all the Juvenile Courts/juvenile Justice Boards of the State immediately. ( 37 ) LET a copy this judgment and order be made available both to Mr. Dastoor and Mr. Ghosal free of cost immediately.