Research › Search › Judgment

Chhattisgarh High Court · body

2009 DIGILAW 283 (CHH)

KACHHARU @ SUSHIL v. STATE OF C. G.

2009-10-29

DHIRENDRA MISHRA, R.N.CHANDRAKAR

body2009
ORAL JUDGMENT As per Hon'ble Shri Dhirendra Mishra, J.:- 1. In compliance of the order dated 4.4.2008, learned II Additional Sessions Judge has conducted enquiry for determining the age of appellant Kachharu @ Sushil, s/o Paras Ram, and submitted his report along with complete enquiry proceedings. The learned Addl. Sessions Judge has assessed the age of appellant on the date of incident i.e. 21.4.2001 as 17 years. 2. Objection has been filed on behalf of the State to the above report of the trial Court regarding finding on age of the appellant under Section 7 A of the Juvenile Justice (Care and Protection of Children) Act, 2000 (in short "the Act, 2000"). 3. Mr. Ravindra Agrawal, learned counsel for the State, submits that the finding of the trial Court is based on evidence off other of the appellant, school admission register Article' 'A' and report of the radiologist dated 3.7.2008. However, in the enquiry proceedings, the State was not afforded with an opportunity to cross-examine father of the accused and the witness, who has proved the school admission register. It has been further objected that the report of radiologist is not specific and it only says that the appellant was more than 17 years of age, whereas in other evidence available on record of the trial Court, such as memorandum of the appellant recorded under Section 27 of the Evidence Act and other documents, age of the appellant is mentioned as 18 years on the date of incident. 4. On the other hand, Mr. YC Sharma, learned counsel appearing for the appellant, submits that there is unrebutted evidence in the form of school admission register and report of the radiologist, which have been duly proved and accepted by the trial Court, according to which age of the appellant was less than 18 years on the date of incident. 5. We have heard learned counsel for the parties and perused the report of the learned Addl. Sessions Judge. 6. Learned Addl. Sessions Judge during enquiry vide his order dated 25.4.2008 had forwarded the copy of the order dated 4.4.2008 of the High Court to the AGP and directed him to file all the relevant documents with respect to age of appellant Kachharu for the purposes of enquiry so that report could be prepared. From subsequent order sheets also, it appears that the State was represented through AGP in the enquiry proceedings. From subsequent order sheets also, it appears that the State was represented through AGP in the enquiry proceedings. During enquiry, accused Kachharu was referred to radiologist and the radiologist opined that age of Kachharu is more than 17 years. That apart, the trial Court has also examined Paras Ram-father of the appellant, who has categorically deposed that his son Kachharu was born in the year 1983 on 14th September. He had admitted his son to Hasua Primary School, Baloda and at the time of his admission, his date of birth was recorded. This witness has been cross-examined by the AGP and questions were also put to this witness by the trial Court under Section 165 of the Evidence Act. 7. The document of Article' A-1 (C)' has been duly proved from the original record by Narayan Das Vaishnav-Headmaster of Govt. Boys' Primary School, Baloda Bazar, Distt Raipur, and he has also stated that date of birth of the appellant is recorded in the admission register as 14.9.1983. Thus, on the basis of above evidence, learned Addl. Sessions Judge has determined age of the appellant to be more than 17 years. 8. In view of the above facts, objection of the State against the report of learned Addl. Sessions Judge with regard to age of the appellant is without any substance and accordingly, the same is rejected. 9. The appellant has preferred this criminal appeal against the judgment of conviction and order of sentence dated 9.9.2002 passed in S.T.No.339/2001 whereby learned II Additional Sessions Judge, Baloda Bazar, Distt. Raipur, after holding the appellant guilty for causing homicidal death of Motu @ Gorelal, has convicted him under Section 302 of the IPC and sentenced to life imprisonment, pay a fine of Rs.1,000/-, in default thereof, to undergo additional RI for six months. 10. Mr. YC Sharma, learned counsel for the appellant, has challenged conviction of the appellant only on the ground that at the time of incident, the appellant was juvenile as he was less than 18 years. 10. Mr. YC Sharma, learned counsel for the appellant, has challenged conviction of the appellant only on the ground that at the time of incident, the appellant was juvenile as he was less than 18 years. This objection was raised for the first time in this appeal by way of amendment in the memo of appeal; the same was entertained and the trial Court was directed to conduct enquiry for determining the age of the appellant, and report of the trial Court has already been received, accordingly to which age of the appellant has been opined above 17 years and less than 18 years on the date of incident. 11. Learned counsel for the appellant does not dispute the finding of conviction recorded by the trial Court based on the evidence adduced by the prosecution. However, relying upon the judgments in the matters of Babban Rai and another Vs. State of Bihar-1, Bhola Bhagat Vs. State of Bihar-2 and Jayendra and another Vs. State of Uttar Pradesh-3, it was argued that sentence imposed upon the juvenile in conflict with law in sessions trial conducted by regular Sessions Court is liable to be set aside. 1. 2008 Cri.L.J.1038 2. (1997) 8 SCC 720 3. AIR 1982 SC 685 12. On the other hand, Mr. Agrawal, learned counsel for the State, does not dispute the 'proposition of law propounded in the cited judgments and applicability of the same in the facts of the' pre' sent case. 13. We have heard learned counsel for the parties. 14. We have already observed in the foregoing paragraphs that the appellant was juvenile on the date and time of the incident as is established from there port of the trial Court on the basis of enquiry conducted under Section 7 A of the Act, 2000. Conviction of the appellant under Section 302' of IPC by the learned Addl. Sessions Judge has not been challenged and challenge is only to the sentence part, whereby a juvenile has been sentenced to undergo life imprisonment. 15. In the matter of Jayendr-3, the Hon'ble Supreme Court was seized of' the matter where a juvenile was sentenced to life imprisonment for the offence committed by him during his childhood. Sessions Judge has not been challenged and challenge is only to the sentence part, whereby a juvenile has been sentenced to undergo life imprisonment. 15. In the matter of Jayendr-3, the Hon'ble Supreme Court was seized of' the matter where a juvenile was sentenced to life imprisonment for the offence committed by him during his childhood. Considering the fact that the offence was committed while the appellant was child and that he had attained the age of 23 years when the appeal was decided, the Hon'ble Supreme Court while upholding his conviction, quashed the sentence imposed upon him and directed his release forthwith. 16. In the case of Bhola Bhagar, the Hon'ble Supreme Court relying upon the decision of three Judges Bench of the Supreme Court in the matter of Pradeep Kumar Vs. State of UP, held that since on the date of occurrence, the appellants had not completed 16 years of age, 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. However, considering that the appellants were more than 30 years at the time of delivery of judgment, the Hon'ble Supreme Court while sustaining conviction of the appellants under all the charges framed against them, quashed the sentences awarded to them and directed their release forthwith. 17. In Babban Rai-2 also, the appellants were convicted for murder and sentenced to life imprisonment. Age of the accused persons on the date of occurrence was found to be below 16 years, they were held entitled to protection of 2000 Act and in these circumstances, the Hon'ble Supreme Court upheld the order passed by the High Court whereby conviction of the appellants by the trial Court was upheld and sentence imposed on them was set aside. It has been held in para-5 thus: "So far as convictions of these two appellants, as confirmed by the High Court, are concerned, learned counsel appearing on behalf of the appellants is not in a position to point out any error in the order of the High Court whereby convictions of the appellants have been confirmed. Having gone through the impugned judgment and the records, we also do not find any ground to hold that the High Court was not justified in upholding the convictions of the appellants. Having gone through the impugned judgment and the records, we also do not find any ground to hold that the High Court was not justified in upholding the convictions of the appellants. This being the position, we are of the view that the High Court has not committed any error in upholding convictions of the appellants. Now, the question arises in relation to sentences. In view of our aforesaid finding that these two appellants were juvenile on the date of alleged occurrence and they have now attained majority, it would be just and expedient to set aside their sentences and pass an order of releasing them as they cannot be sent to remand home." 18. In the present appeal also, the appellant has been convicted under Section 302 of the IPC and sentenced to undergo life imprisonment and fine of Rs.1000/-. On enquiry, we find that age of the appellant was less than 18 years and as such, he was also entitled to be dealt with in accordance with the Act of 2000. The date of birth of the appellant has been determined as 14.9.1983 and as such, he has now completed almost 26 years. In these circumstances, following the principles of law laid down in the above cited judgments, we, while upholding the conviction of the appellant under Section 302 of IPC, set aside the sentence imposed on him by the learned Addl. Sessions Judge. 19. In the result, the appeal is partly allowed. Conviction of the appellant under Section 302 of IPC is upheld, however, sentence of life imprisonment and fine of Rs.1,000/- imposed on him is set aside. The appellant be set at liberty forthwith, if not required in any other case. Appeal Partly Allowed.