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2009 DIGILAW 414 (CAL)

Mufijul Hussain v. State

2009-06-12

G.C.Gupta, Kishore Kumar Prasad

body2009
JUDGMENT Kishore Kumar Prasad, J. 1. PURSUANT to the judgment and order passed by us on 6th January 2009 affirming the conviction of the four appellants, namely, Mafijul Hossain, Karma @ Karam Sheikh, Bhadu Sheikh and Bhola Sheikh @ Ekramul for the offence punishable under Section 302 read with Section 34 of the Indian Penal Code, this appeal was kept part-heard as regards the sentence against the appellant Bhola Sheikh @ Ekramul who claimed to have been a juvenile on the date of incident that is on 9th June 1984. 2. BY our order dated 6th January, 2009, the learned Chief Judicial Magistrate, Malda was directed to hold an enquiry as regards the age of the appellant Bhola Sheikh @ Ekramul on the date of incident after giving opportunity to the parties to lead evidence in accordance with law. Liberty was also given to the learned Chief Judicial Magistrate, Malda to refer this appellant to the Medical Board the Civil Surgeon as the case may be for obtaining credit worthy evidence above his age. In terms of the said order, an enquiry was conducted by the learned Chief Judicial Magistrate. Malda and in course of said enquiry; evidence both oral and documentary was adduced on behalf of this appellant and that apart, this appellant was also examined by the Medical Board on 20.1.2009 at the office of Superintendent, District Hospital. Malda. 3. HEARD the learned counsel for the parties on the enquiry report submitted the learned Chief judicial Magistrate, Malda. Learned counsel appearing for the State-respondent in her usual fairness submitted before this Court that she did not find any illegality in the record of enquiry proceeding conducted by the learned Chief judicial Magistrate, Malda. 4. THE evidence both oral and documentary appearing from the record of the enquiry proceeding goes to show that the appellant was born on 20.3.1975 and he according to the corroborative evidence adduced on behalf of the appellant was aged nine years two months and nineteen days on the date of incident that is on 9.6.1984 From the age estimation report submitted by Superintendent, Malda District Hospital on the basis of the opinion of the Medical Board, it appears that this appellant on the date of incident was aged in between five and fifteen years. From the totality of the evidence both oral and documentary and after considering the age estimation report of the Superintendent, Malda District Hospital, we have no hesitation in coming to a definite conclusion that this appellant was far below sixteen years of age on the date of occurrence that is on 9.6.1984. 5. NOW, we are required to consider as to whether at this stage this Court can consider the question of referring the matter to the Juvenile Board. 6. AS regards desirability of sending this respondent Bhola Sheikh @ Ekramul to the juvenile Board reference may be made to the judgment in the case of Upendra Kumar v. State of Bihar wherein the following view was taken: "5, The course this Court adopted in Gopinath Ghosh case as also in Bhola Bhagat case was to sustain the conviction but, at the same time, quash the sentence awarded to the convict. In the present case, at this distant time, the question of referring the appellant to the Juvenile Board does not arise. Following the aforesaid decisions, we would sustain the conviction of the appellant for the offences for which he has been found guilty by the Court of Sessions as affirmed by the High Court, at the same time, however, the sentence awarded to the appellant is quashed and the appeal is allowed to this extent. Resultantly, the appellant is directed to be released forthwith if not required in any other case." In the case of Babban Rai and Anr. v. State of Bihar2 it was held by a Three Judge Bench of the Hon Tile Apex Court that when the appellant has already attained majority, it would be just and expedient to set aside his sentence and to pass an order releasing him as he cannot now be sent to remand home. 7. IN the premises we sustain his conviction for the offence punishable under Section 302 read with Section 34 of IPC, for which he has been found guilty by us and at the same time we puss an order releasing him instead of awarding him any sentence for the offence committed by him. 8. IT appears from the report that this appellant was released on bail as per our order dated 6.1.2009 to the satisfaction of learned Chief Judicial Magistrate, Malda during the pendency of this appeal to which he need not surrender. 8. IT appears from the report that this appellant was released on bail as per our order dated 6.1.2009 to the satisfaction of learned Chief Judicial Magistrate, Malda during the pendency of this appeal to which he need not surrender. Bail/surety bonds of this appellant/accused shall stand discharged. This judgment and order is in continuation of judgment and order passed by us on 6.1.2009. By this judgment and order the appeal is finally disposed of. 9. LOWER Court Records with a copy of this judgment be sent down forthwith to the learned Trial Court for information and necessary action. 10. SEND also a copy of this judgment along with Admission Register and Transfer Certificate (marked exhibit land 2 in the record of enquiry proceeding of the learned Chief Judicial Magistrate, Malda) to the learned Chief .Judicial Magistrate, Malda for information and necessary action. Appeal disposed of accordingly.