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2012 DIGILAW 1073 (GAU)

Md. Raham Ali v. State of Assam

2012-09-10

I.A.ANSARI, P.K.MUSAHARY

body2012
JUDGMENT I.A. Ansari, J. 1. This appeal is directed against the judgment and order, dated 9.4.2007, passed by the learned Addl. Sessions Judge, (FTC), Lakhimpur, in Sessions Case No. 86(NL)/2000, convicting the accused-appellant under Section 302 IPC and sentencing him to suffer imprisonment for life and pay fine of Rs. 1,000/- and, in default of payment of fine, undergo rigorous imprisonment for a period of six months. We have heard Mr. P. Katakey, learned Amicus Curiae, and Mr. Z. Kamar, learned Public Prosecutor, Assam. 2. While considering the present appeal, it has come to our notice that at the time of examination under Section 313 Cr.P.C., the accused-appellant mentioned his age as 19 years, whereupon the learned trial Court put certain questions to the accused to determine if the accused-appellant had any material to show that he was 19 years old on 9.5.2005, when his statement under Section 313 Cr.P.C. was being recorded. It has also come to our notice that learned trial Court examined the headmaster of the school, where the accused-appellant had claimed to have studied and the learned trial Court had also constituted a medical board for determination of the age of the accused- appellant. 3. In the light of the evidence given by the P.W. 14, the headmaster of Dakhin Sunapur L.P. School, the accused-appellant was, in terms of the admission register, was given admission on 27.11.90 and his date of birth was recorded, in the admission register, as 27.11.87 and he left the school on 31.12.92. The occurrence, which became the basis for trial of the accused-appellant, admittedly, took place on 10.5.2000. If the evidence given by P.W. 14 and the documentary evidence produced by him were to be believed, the accused was not even 14 years old at the time, when the alleged occurrence had taken place. Surprisingly enough, the learned trial Court, without determining the question as to whether the accused-appellant was or not a juvenile at the time of the alleged occurrence, held him guilty and convicted him accordingly. 4. Thu, the conviction of the accused-appellant, under Section 302 IPC, by the learned trial Court, is wholly illegal and cannot be sustained. Surprisingly enough, the learned trial Court, without determining the question as to whether the accused-appellant was or not a juvenile at the time of the alleged occurrence, held him guilty and convicted him accordingly. 4. Thu, the conviction of the accused-appellant, under Section 302 IPC, by the learned trial Court, is wholly illegal and cannot be sustained. If the accused-appellant was a juvenile on the date of alleged occurrence, his case has to be tried in accordance with law contained in that behalf and if he was not a juvenile, then and then only he could have been tried and convicted in the manner as has been done. 5. In view of what have been discussed and pointed out above, this appeal partly succeed. The conviction of the accused-appellant and the sentence passed against him by the learned trial Court by the judgment and order, under appeal, stand hereby set aside and the appeal is remanded to learned Sessions Judge, Lakhimpur, with direction to dispose of the case in the light of what have been pointed out above. The exercise, as directed hereinbefore, shall be carried out as expeditiously as possible, preferably, within a period of two months form the date of receipt of the record and a copy of this order. 6. Notwithstanding the fact that we have interfered with the conviction of the accused-appellant, the accused appellant, until the time the case is disposed of in accordance with law, shall remain in jail custody. 7. Before parting with the record, we also made it clear that no observation has been made and no opinion has been expressed by us with regard to the correctness or veracity of the evidence, which has come on record in support of the fact that the accused-appellant was a juvenile on the alleged date of occurrence, so that learned trial Court remains free to come its own independent judicious finding uninfluenced by observations of this Court. 8. The Registry is directed to send back the LCR. Learned Amicus Curie shall be paid his fee of Rs. 5,000/-, (Rupees Five Thousand) only which shall be borne by the Assam State Legal Services Authority.