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2011 DIGILAW 463 (GAU)

Bapi Adhikari v. State of Tripura

2011-05-30

A.C.UPADHYAY, UTPALENDU BIKAS SAHA

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JUDGMENT U.B. Saha, J. 1. Heard Mr. R. Datta, learned Counsel, appearing for the Appellant and Mr. P. Bhattacharjee, learned Additional Public Prosecutor, appearing on behalf of the State Respondent. 2. The Appellant, by filing the instant appeal, challenged the order of conviction and sentence dated 03.08.2002, passed by the learned Additional Sessions Judge, Court No. 2, Agartala, West Tripura, in Case No. S.T.102(WT/A) of 2000, whereby and whereunder the accused Appellant has been convicted under Sections 302 and 364 of IPC and sentenced to suffer R.I. for life and to pay a fine of Rs. 10,000/- for the offence punishable under Section 302 of IPC and also sentenced to suffer R.I. for seven years and to pay a fine of Rs. 3,000/-, in default to pay fine to undergo further R.I. for one year for the offence punishable under Section 364 of IPC, with direction that both the sentences would run consecutively. 3. When the appeal is pending, the accused-Appellant filed an application being Crl. M. Appln. No. 60 of 2011, contending inter alia, that at the time of committing the alleged offence the accused-Appellant was juvenile; therefore, the order of conviction and sentence, passed by the learned trial Court, is wholly unsustainable. By an order dated 11.04.2011, passed in Crl. M. Appln. No. 60 of 2011, this Court directed an inquiry to be made to determine if the Appellant was juvenile on the date of the alleged occurrence. 4. Following the direction, so issued, the learned District & Sessions Judge, West Tripura, Agartala, has held an inquiry and has submitted his report. In his report it is stated that at the relevant time of alleged occurrence, the Appellant was at the age of 14 years 8 months and 12 days though in the arrest Memo. he was shown as 16 years on the date of arrest. 5. Mr. Datta, learned Counsel appearing for the Appellant submits that what was the date and time of arrest, is not the determining factor to consider whether the accused Appellant was juvenile at the relevant time or not. Actually what was the age on the date of the alleged occurrence is to be considered before proceeding with the trial. 5. Mr. Datta, learned Counsel appearing for the Appellant submits that what was the date and time of arrest, is not the determining factor to consider whether the accused Appellant was juvenile at the relevant time or not. Actually what was the age on the date of the alleged occurrence is to be considered before proceeding with the trial. Learned Counsel for the Appellant also placed reliance on the judgment of the Apex Court in the case of Lakhan Lal with Pappu Lal @ Manoj Kumar Srivastava v. State of Bihar, AIR 2011 SC 842 , wherein the Apex Court, considering the entire fact involved in the said appeal noted inter alia, that "the next question for our consideration is as to what order and sentence is to be passed against the Appellants for the offences committed by them under Section 302 read with Section 34 of the IPC? Both the Appellants have crossed the age of 40 years as at present and therefore it will not be conducive to the environment in the special home and at any rate, they have undergone an actual period of sentence of more than three years the maximum period provided under Section15 of the 2000 Act. In the circumstances, while sustaining the conviction of the Appellants for the offences punishable under Section 302 read with Section 34 of the IPC, the sentences awarded to them are set aside. They are accordingly directed to be released forthwith. This view of ours to set aside the sentence is supported by the decision of this Court in Dharambir, AIR 2010 SC 1801 (supra). 6. Mr. Datta, learned Counsel for the Appellant further submits that meanwhile the Appellant has already undergone sentence of 8 years 9 months and 27 days, which is more than the requirement prescribed under Section 15 of the 2000 Act. Therefore, it would be appropriate for this Court to set aside the order of sentence upholding the order of conviction. 7. Mr. P. Bhattacharjee, learned Additional Public Prosecutor in his usual fairness submits that the normal course would be to set aside the order of conviction and sentence and remit the same before the appropriate Court to decide the matter under the appropriate Act i.e. the Juvenile Justice (Care & Protection of Children) Act, 2000. 7. Mr. P. Bhattacharjee, learned Additional Public Prosecutor in his usual fairness submits that the normal course would be to set aside the order of conviction and sentence and remit the same before the appropriate Court to decide the matter under the appropriate Act i.e. the Juvenile Justice (Care & Protection of Children) Act, 2000. But as in the instant case, the Appellant has already suffered more than 8 years' imprisonment, which is maximum than the period of sentence provided under Section 15 of the 2000 Act i.e. three years, the Court may allow the prayer of the learned Counsel for the Appellant. 8. We have minutely examined the report of the learned Sessions Judge. We are also of the opinion that at the relevant time of the alleged offence, the Appellant was juvenile and he could not have, therefore, been tried as has been done in the present case and his case ought to have been dealt with in accordance with the provisions of Section 7A of the Juvenile Justice (Care and Protection of Children) Amendment Act, 2006. But at the same time, we cannot ignore the fact which is placed before us inter alia that the Appellant has already suffered a period of sentence of more than 8 years, which is maximum than the period of sentence prescribed under Section 15 of the 2000 Act. Even if after remission of the matter, the learned Juvenile Justice Board sentence the Appellant for the alleged offence then also that cannot be more than the period, which he has already suffered. 9. Taking note of the aforesaid fact and the decision of the Apex Court in Lakhan Lal(supra), we are of the considered opinion that it would be appropriate to sustain the order of conviction of the Appellant for the offence punishable under Section 302 as well as Section 364 of the IPC and modify the order of sentence passed by the learned trial Court to the period the Appellant has already undergone. 10. Ordered accordingly. 11. Consequently, it is hereby directed that the Appellant shall be released forthwith, if he is not required in any other case. 12. In the result, the appeal is partly allowed. Appeal allowed