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2008 DIGILAW 298 (PAT)

Dina Nath Paswan v. State Of Bihar

2008-02-12

SHAILESH KUMAR SINHA, SHIVA KIRTI SINGH

body2008
Judgment 1. The sole appellant has been convicted for the offence under Sections 302 and 201 of the IPC and awarded imprisonment for life and RI for seven years respectively for the said offences by the judgment and order dated 22nd February, 2003 passed by Additional District and Sessions Judge, I (Fast Track), Vaishali at Hajipur in Sessions Trial No. 239 of 1996. Both the sentences have been directed to run concurrently. The appellant was also charged for the offence under Section 376. IPC, but he has been acquitted of the said charge. 2. The prosecution case, as appearing from the fardbeyan (exhibit-5) of the informant Pukar Mahto (PW 2), is to the effect that his niece Sobha Kumari aged about seven years was called by the accused-appellant from the house at about 2 p.m. in the day on the pretext that her mother was calling her to carry fire woods. The victim girl went with him. In the evening when her mother came and searched for the victim then she could not be traced. On the next date in course of search Sukan Paswan and Lakhan Thakur (PW 1) disclosed that in the previous day the victim had gone with the appellant. Several persons of the village including PW 1 participated in the search for the victim girl and the appellant. The appellant could be contacted at about 10 a.m. and on enquiry regarding the victim Sobha Kumari, he initially replied that he new nothing about her, but on repeated queries he disclosed that she is dead and her body was laying in an "arhar field". On the disclosure made by the appellant the dead body of the victim girl was found in the "arhar" field of one Sagar Singh. The villagers brought the dead body from that lonely field to Kali Asthan of the village and began further interrogation of the appellant. The appellant allegedly accepted his crime and admitted that he had hidden the dead body of Sobha Kumari after killing her. The informant clarified that he had no enmity with the appellant and that the appellant had been slightly assaulted by the villagers in course of being apprehended. The informant claimed that the appellant had committed rape against the deceased and also murdered her and then concealed the dead body. The informant clarified that he had no enmity with the appellant and that the appellant had been slightly assaulted by the villagers in course of being apprehended. The informant claimed that the appellant had committed rape against the deceased and also murdered her and then concealed the dead body. On the basis of the fardbeyan (Ext.-5) recorded by Sub-Inspector of Police of Jurawanpur PS on 23.12.1992 a formal FIR was drawn up leading to Jurawanpur P.S. Case No. 65 of 1992 corresponding to G.R. No. 3028 of 1992, under Sections 376, 302 and 201 of the IPC. After investigation police submitted charge-sheet against the sole accused, the appellant. After cognizance the case was committed to the Court of Sessions. The appellant pleaded not guilty to the charges and was therefore put on trial. He has been ultimately convicted and sentenced by the judgment and order under appeal, as noticed earlier. 3. The defence of the accused is of false implication at the instance of Arun Kumar Singh (PW 5) and Ashok Kumar Singh (PW 6). The appellant has examined himself as DW 1 to claim that PWs 5 and 6 are brothers and they have implicated him falsely because he used to work as their labourer and was not paid his wages inspite of demand. 4. The prosecution, in order to prove its case, has examined altogether six witnesses. PW 1 Lakhan Thakur, PW 2 Pukar Mahto (informant), PW 5 Arun Kumar Singh and PW 6 Ashok Kumar Singh arc the material witnesses on the point of victim Sobha Kumari having gone with the appellant on 22.12.1992 and thereafter not seen alive. PW 3 Dr. B.N. Singh was, at the relevant time, posted as Deputy Superintendent, Sadar Hospital, Hajipur and in his presence autopsy was conducted on the dead body of Sobha Kumari by Dr. Amarnath Jha (PW 4), who was then a Civil Assistant Surgeon attached to Sadar Hospital, Hajipur. The post mortem report has been proved as Exhibit-1. According to medical evidence, the deceased had sustained four ante mortem injuries. One was abrasion on the inner side of left thigh. The second injury was also an abrasion on the left lebia majora. Amarnath Jha (PW 4), who was then a Civil Assistant Surgeon attached to Sadar Hospital, Hajipur. The post mortem report has been proved as Exhibit-1. According to medical evidence, the deceased had sustained four ante mortem injuries. One was abrasion on the inner side of left thigh. The second injury was also an abrasion on the left lebia majora. Third injury was also in the nature of abrasion of different sizes on the left side of neck in front portion and the fourth injury was an abrasion on the right wide of neck on the front side. In the opinion of the doctor the death was caused by Aspexia due to the above injuries which were sufficient to cause death. The time elapsed since death was estimated to be 48 hrs. The post mortem examination was conducted on 24.12.1992 at 1.15 pm i.e. within 48 hrs of disappearance of victim girl from her house. 5. There is no direct evidence in the form of eye-witness account of the alleged occurrence, but on the basis of evidence of PWs 1, 2, 5 and 6, who all claimed to have seen the deceased going in the company of the accused on 22.12.1992 at about 2 pm, the prosecution has succeeded in showing that the deceased was laft seen alive with the appellant when she accompanied him on a false representation by the appellant that her mother was calling her. On the next day the appellant was asked to explain where he had kept Sobha Kumari and on persistent enquiry he disclosed the place where he had concealed the dead body which was an "Arhar" field. Thereafter the dead body of Sobha Kumari was recovered from inside the field. The aforesaid facts have been deposed by PWs 1, 5 and 6. PW 2 the informant has admitted that he was not present at the place when Dina Nath Paswan, the appellant, told the victim that her mother was calling her and he had not gone to the place from where the dead body was recovered, but he has deposed that he was present when the appellant disclosed where he had concealed the dead body in an "Arhar" field. 6. There is nothing in the cross examination of the aforesaid material witnesses to discredit their trustworthiness. 6. There is nothing in the cross examination of the aforesaid material witnesses to discredit their trustworthiness. Although the appellant has taken a defence that he used to work at the place of Ashok Kumar Singh, who did not pay any remuneration and therefore he left working for him and hence he was falsely implicated in this case, in cross-examination of PW 6 Ashok Kumar Singh no suggestion has been given that the appellant worked for him or that the appellant had left his employment due to non-payment of wages. PW 6 has disclosed that witness Sukan Paswan. who was one of the witnesses and before whom allegedly the appellant had made confession and disclosed the place of concealment of the dead body, was no longer alive. 7. The medical evidence available on record fully supports the prosecution case as it shows some injury on the thigh and private part of the victim and discloses that she was strangulated to death and the same left abrasions on her neck. 8. On going through the entire evidence and materials available on record, we find that there is no difficulty in accepting the evidence of the witnesses and on the basis of circumstances proved by them the trial Court has rightly convicted the appellant of the charge under Section 302 as well as 201 of the IPC. The benefit of doubt for the charge under Section 376, IPC appears to have been given to the appellant only because he was also medically examined by the doctor, PW 3 on 24.12.1992 at 3.10 p.m. but no injury or any sign of his having committed rape was found by the doctor. Be as it may, the conviction of the appellant for the offence under Sections 302 and 201, IPC require no interference and the same is, hereby, confirmed. 9. So far as the sentence awarded to the appellant is concerned, a serious issue has been raised on behalf of the appellant that the fardbeyan recorded on 23.12.1992 clearly disclosed the age of the appellant as 17 years. 9. So far as the sentence awarded to the appellant is concerned, a serious issue has been raised on behalf of the appellant that the fardbeyan recorded on 23.12.1992 clearly disclosed the age of the appellant as 17 years. It has further been shown from the records of the concerned Magistrate where the appellant was initially produced that he was found to be a minor and sent to remand home, but instead of getting his age scientifically determined in a proper enquiry, at a later stage when he was produced by the police after re-arrest since he had absconded from the remand home, he was treated to be a major and trial was conducted accordingly. Learned counsel for the appellant has also drawn our attention to the age of the appellant as mentioned by the trial Court on 18.2.2003 when he was examined as DW 1. On that date he was found to be 26 years of age which was same as the age claimed by him. The aforesaid entry in respect of the age of the appellant as DW 1 is in Hindi numerical. Surprisingly, few days earlier the appellant had been examined on 16.1.2003 under Section 313 of the Code of Criminal Procedure and the trial Court has written in English numerical his age as 38 years and the age claimed by the appellant to be 35-36 years. On the basis of aforesaid materials it has been submitted on behalf of the appellant that according to the case of prosecution in the fardbeyan the appellant was 17 years of age on the date of occurrence and even according to his age estimated by the Court when he was examined as DW 1, he was 26 years on 18th February, 2003 and was about 16 years of age on the alleged date of occurrence. Hence according to the learned counsel for the appellant he must be treated to be a juvenile under the provisions of the Juvenile Justice (Care and Protection of Child) Act, 2000 and given the benefit of Section 7-A which has been inserted in the said Act by an amendment Act of 2006. 10. On facts we find substance in the submission that on the basis of materials available on record and even according to the prosecution case the appellant cannot be treated to be above 18 years of age on the date of alleged occurrence. 10. On facts we find substance in the submission that on the basis of materials available on record and even according to the prosecution case the appellant cannot be treated to be above 18 years of age on the date of alleged occurrence. Hence, he must be treated as a juvenile for the purpose of benefits accruing to a person who claims to be a juvenile as flowing from Section 7-A, as noticed above. Recently a Division Bench of this Court had the occasion to consider the scope and effect of Section 7-A as introduced through the Juvenile Justice (Care and Protection of Child) Amendment Act, 2006 in the case of Akhilesh Ojha v. The State of Bihar and the Court held that Section 7-A of the Amendment Act is retrospective and covers even those juveniles who have ceased to be so on or before the date of commencement of the Amendment Act and a claim of juvenility is to be recognised at any stage, even after final disposal of the case. In the aforesaid case of Akhilesh Ojha reported in 2008 (1) BBCJ 86 , the Division Bench reproduced the entire Section 7-A and after full consideration gave the required benefit to one of the appellants of that case who was juvenile on the date of occurrence which had taken place in 1973. Sub-section (2) of Section 7-A mandates that if the Court finds a person to be a juvenile on the date of commission of the offence, it shall forward the juvenile to the Board for passing appropriate order and the sentence, if any, passed by the Court shall be deemed to have no effect. Clearly, since we have found the appellant to be a juvenile on the alleged date of occurrence, the sentence passed against him by the trial Court must be declared to have no effect. Now it is to be seen whether he should be forwarded to the Board for passing appropriate order or sentence in accordance with law or not. It has been brought to our notice that appellant has remained in custody through out the trial and the total period of custody comes to about 13 years. Now it is to be seen whether he should be forwarded to the Board for passing appropriate order or sentence in accordance with law or not. It has been brought to our notice that appellant has remained in custody through out the trial and the total period of custody comes to about 13 years. Hence we find that in this case although the appellant was a juvenile when he committed the offence, he has practically completed the entire sentence awarded to him because life imprisonment in practical terms generally means imprisonment for 14 years. This sentence which the appellant has already undergone is much severe and much more than what the Juvenile Justice Board can award to the appellant if his case is remanded. In that view of the matter, we find that there is no necessity to refer the case of the appellant to the concerned Juvenile Justice Board for passing appropriate sentence against the appellant. Hence, assuming the power available to this Court under Section 6(2) of the Juvenile Justice (Care and Protection of Child) Act, 2000, we hold that the appellant has suffered much more than what he deserved as a juvenile and therefore no further sentencing is required to be considered against him. 11. As a result of aforesaid discussion, we confirm the conviction of the appellant for the offence under Sections 302 and 201 of the IPC but set aside the sentence awarded to him on account of provisions of the Juvenile Justice (Care and Protection of Child) Act, 2000, as noticed earlier. No further sentence is required to be passed against the appellant. He should be released from custqdy forthwith if not required in connection with any other case. The appeal is dismissed in respect of conviction but allowed in respect of sentence by setting aside of the sentence. 12. As prayed for, let a copy of this order be handed over to Ms. R.Usha, learned amicus curiae.