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2012 DIGILAW 1294 (GAU)

Raju Sarkar v. State of Tripura

2012-11-26

S.TALAPATRA

body2012
JUDGMENT S. Talapatra, J. 1. The convicts filed this revisional application under Section 401 of the Cr. P.C. against the judgment and order dated 22.08.2012 as passed by the Sessions Judge, West Tripura, Agartala in Crl. Appl. No. 25(3)/2011, upholding the judgment of conviction as passed by the Juvenile Justice Board in Juvenile Case No. 3 of 2008, however, reducing the sentence from three years under Section 302 of IPC to two years of detention. The brief fact is required to be noted for appreciation. The convicts namely, Sri. Raju Sarkar and Sri. Swapan Sarkar, hereinafter would be referred to as the petitioners, were alleged to have murdered one Arun Das. The information as lodged by one Swapna Das, revealed that at about 6.15 pm on 5.5.2004, the informant and her sister namely, Smt. Ratna Das heard the deceased crying for help. On hearing the cry they rushed to the place of occurrence, a lemon orchard, and found the petitioners assaulting their brother, the deceased, with dao and lathi. Having seen them in the place of occurrence, the petitioners fled away. The informant and her sister found deep cut injury on the neck of the deceased, who was at that point of time lying in a pool of blood. They raised alarm and having been attracted by their alarm, some persons from the nearby place appeared in the place of occurrence. The informant arranged transportation of the deceased to the Teliamura hospital, where from he was referred to the GBP hospital, Agartala. 2. On the basis of the said information, the Teliamura P.S. Case No. 22/04 under Sections 326/34 of IPC was registered and endorsed for investigation. Since the deceased succumbed to the injures, on 30.9.2004 the case was also allowed to be investigated under Sections 302/34 of IPC as well as under Section 379 read with Section 109 of IPC. On completing the investigation, the chargesheet was filed to the Sub-Divisional Judicial Magistrate, Khowai, West Tripura, who took cognizance of the offences and thereafter committed the case to the court of the Addl. Sessions Judge, Khowai, West Tripura by the order dated 24.04.2006. Initially, the Addl. Sessions Judge framed the charge under Sections 302/34 of IPC against the petitioners and another Sachindra Nama. The petitioners herein filed an application to the Addl. Sessions Judge, Khowai, West Tripura by the order dated 24.04.2006. Initially, the Addl. Sessions Judge framed the charge under Sections 302/34 of IPC against the petitioners and another Sachindra Nama. The petitioners herein filed an application to the Addl. Sessions Judge, Khowai, West Tripura, claiming juvenility and produced the necessary documents for purpose of inquiry under Section 7A of the Juvenile Justice (Care and Protection of Children) Act, 2000 read with Rule 14 of the Juvenile Justice (Care and Protection of Children) Act, 2000. For the said purpose, the matter was referred to the Juvenile Justice Board and the trial of Sri Sachindra Nama was adjourned till such decision is arrived by the Juvenile Justice Board on the application of the petitioners. The Juvenile Justice Board held that the petitioners were juvenile at the time of the offence as alleged and accordingly the inquiry by the Juvenile Justice Board, hereinafter would be referred as 'the Board' was carried out. 3. In the course of inquiry, the prosecution examined as many as 16 witnesses and exhibited 9 documentary evidence (Exbt.-1 to Exbt.-9) and also relied on some material objects (Exbt. M.O.-1 to Exbt. M.O.-8). After closure of the prosecution evidence, the juveniles, the petitioners herein were examined under Section 313 of Cr. P.C. on explaining the circumstances that had appeared in the evidence against them, but they claimed innocence. However, the petitioners adduced two witnesses as the DW.1 and the DW.2 in support of their claim of innocence. The Board, thereafter, heard the prosecution as well as the defence at length. On appreciation of the submissions as made and on meticulous scrutiny of the evidence as adduced both by the prosecution and the defence, the Board held that there were sufficient materials to hold the petitioners guilty of the offence under Sections 302/34 of IPC. The Board returned the finding of conviction recording that:- It is crystal clear that the accused persons had dealt blows of dao on Arun with the intention of causing his death and they had the knowledge that such act of the accused persons is likely to cause the death in ordinary circumstances. Moreover, Post mortem examination report shows that Arun was chopped brutally and the assailants dealt blows on vital parts of body of deceased Arun like neck and occipital region. Moreover, Post mortem examination report shows that Arun was chopped brutally and the assailants dealt blows on vital parts of body of deceased Arun like neck and occipital region. So, from the modus operandi of murder, nothing can be inferred excepting that there was firm intention of the assailants to take the life of Arun. Accordingly, the juveniles were convicted and the juveniles, the petitioners herein were ordered to suffer detention in the Special Home for a period of three years for committing the offence punishable under Sections 302/34 of IPC. 4. Aggrieved by the said judgment and order dated 21.06.2011 as passed by the Juvenile Justice Board, West Tripura, Agartala in Juvenile Case No. 05/2008 (corresponding to G.R. No. 61/2004), the petitioners filed an appeal under Section 52 of the Juvenile Justice (Care and Protection of Children) Act, 2000 to the Court of Sessions, fundamentally holding that the judgment of conviction as returned by the Board is not based on sustainable evidence. Again the court of Sessions re-appreciated the evidence as brought on record both by the prosecution and the defence and concurred with the Board and recorded that the Board: Has rightly appreciated the evidence of eye witnesses namely PWs. 1 and 7 and also the witnesses who arrived at the place of occurrence just after the occurrence. The defence story that the victim was subjected to fatal injury at the hand of unknown man-killer appears to me unfounded, imaginary and baseless one. On the basis of that, there had been no interference with the said findings. However, the court of Sessions reduced the term of detention of the petitioners from three years to two years. This revision petition is against the said judgment and order dated 22.08.2012 as passed by the court of Sessions in Crl. Appl. No. 25(3)/2011. 5. Mr. On the basis of that, there had been no interference with the said findings. However, the court of Sessions reduced the term of detention of the petitioners from three years to two years. This revision petition is against the said judgment and order dated 22.08.2012 as passed by the court of Sessions in Crl. Appl. No. 25(3)/2011. 5. Mr. D.C. Roy, learned counsel appearing for the petitioners quite candidly submitted before this Court that he preferred not to challenge the findings of conviction rather he would question the detention that has been directed to be suffered by the petitioners inasmuch as the said directions stand contrary to the provisions of Section 15(1)(g) of the Juvenile Justice (Care and Protection of Children) Act, 2000, which provides to:- Make an order directing the juvenile to be sent to a special home for a period of three years' providing that the Board may, if it is satisfied that having regard to the nature of the offence and the circumstances of the case, it is expedient so to do, for reasons to be recorded, reduce the period of stay to such period as it thinks fit. Mr. Roy, learned counsel for the petitioners advanced such submission, holding that when the sentence was awarded against the petitioners both of them had crossed the age of juvenility as would be evident from the records. 6. On considering the records, it appears that according to the School Certificate, the date of birth of Raju Sarkar, the petitioner No. 1 is 10.11.1988 whereas the date of birth of the petitioner No. 2 namely, Swapan Sarkar is 15.05.1989. When the judgment of conviction and order of sentence was passed on 21.06.2011, both the petitioners had crossed the age of juvenility. There is no dispute that when the order of sentence was passed by the Board, the petitioners were no more juvenile. Since the judgment of conviction is not under challenge it is not require for this Court to re-appreciate the evidence rather it would be apposite to consider the question that whether a person who is no more juvenile even though when the offence was committed he was juvenile can be directed to suffer detention in a juvenile home or not. The statute is silent over that issue. The statute is silent over that issue. The statute merely provides that the juvenile as found in conflict with law can be sent to a special home for a period of three years. Section 9 of the Juvenile Justice (Care and Protection of Children) Act, 2000 deals with the special homes, which is required for reception and rehabilitation of juvenile in conflict with law, but in the said homes none other than the juvenile can be detained. Again Rule 16 of the Juvenile Justice (Care and Protection of Children) Act, 2000 has dealt with the said special institutions. 7. Mr. R.C. Debnath, learned Addl. Public Prosecutor for the State has acceded to that that the special homes are meant only for the juveniles not for other categories of the convicts. Therefore, the petitioners cannot be detained in the juvenile home any further. When confronted whether they can be kept in the prison, Mr. Debnath, learned Addl. Public Prosecutor submitted that since there is no order for imprisonment, the petitioners cannot be incarcerated in a prison. 8. While appreciating the submission as made by the learned counsel appearing for the petitioners, this Court has considered the following decisions of the Apex Court as rendered in:- (1) Vaneet Kumar Gupta vs. State of Punjab, as reported in (2009) 17 SCC 587 (2) Hari Ram vs. State of Rajasthan, as reported in (2009) 13 SCC 211 (3) Upendra Kumar vs. State of Bihar, as reported in (2005) 3 SCC 592 (4) Bhola Bhagat vs. State of Bihar, as reported in (1997) 8 SCC 720 (5) Pradeep Kumar vs. State of U.P., as reported in 1995 Supp. (4) SCC 419 (6) Bhoop Ram vs. State of U.P., as reported in (1989) 3 SCC 1 (7) Gopinath Ghosh vs. State of W.B., as reported in 1984 Supp. SCC 228 (8) Jayendra vs. State of U.P., (1981) 4 SCC 149 9. Since all those decisions as stated above were considered by a very recent decision of the Apex Court Vijay Singh vs. State of Delhi, as reported in (2012) 8 SCC 763 , this Court finds it convenient to refer the decision of Vijay Singh(supra) in this context For convenience, the following passages from Vijay Singh(supra) are excerpted hereunder:- 16. Since all those decisions as stated above were considered by a very recent decision of the Apex Court Vijay Singh vs. State of Delhi, as reported in (2012) 8 SCC 763 , this Court finds it convenient to refer the decision of Vijay Singh(supra) in this context For convenience, the following passages from Vijay Singh(supra) are excerpted hereunder:- 16. Having regard to the above conclusion, in the normal course we would have remitted the matter to the Juvenile Justice Court, Itawa for disposal in accordance with law. However, since the offence was alleged to have been committed more than 10 years ago and having regard to the course adopted by this Court in certain other cases reported in Jayendra vs. State of U.P., (1981)4 SCC 149 , Bhoop Ram vs. State of U.P., (1989) 3 SCC 1 , which were subsequently followed in Bhola Bhagat vs. State of Bihar, (1997) 8 SCC 720 , Pradeep Kumar v. State of U.P., 1995 Supp. (4) SCC 419, Upendra Kumar vs. State of Bihar, (2005) 3 SCC 592 and Vaneet Kumar Gupta vs. State of Punjab, (2009) 17 SCC 587 , we are of the view that at this stage when the appellant would have now crossed the age of 30 years, there is no point in remitting the matter back to the Juvenile Justice Court. Instead, following the abovereferred decisions, appropriate orders can be passed by this Court itself. 17. In Jayendra, (1981) 4 SCC 149 , the challenge arose under Uttar Pradesh Children Act, 1951 which contained Section 27 which mandated that no child shall be sentenced to any term of imprisonment and if a child had been found to have committed an offence punishable with imprisonment then he could be sent to an approved school. However, it had been determined by the Supreme Court through the reports of medical officers taking into account the general appearance, physical examination and radiological findings of the Appellant Jayendra, that he had been a 'child' under the definition in the Act at the time of commission of the offence. However, at the time of hearing of the SLP by the Supreme Court, he had already attained the age of 23. In the light of that, the Court upheld the conviction of the Appellant Jayendra, but quashed the sentence imposed on him and directed that he be released forthwith. 18. However, at the time of hearing of the SLP by the Supreme Court, he had already attained the age of 23. In the light of that, the Court upheld the conviction of the Appellant Jayendra, but quashed the sentence imposed on him and directed that he be released forthwith. 18. The Court observed as under, (Jayendra and another vs. State of U.P., (1981) 4 SCC 149 ). 3. Section 2(4) of the Uttar Pradesh Children Act, 1951 (U.P. Act 1 of 1952) defines a child to mean a person under the age of 16 years. Taking into account the various circumstances on the record of the case we are of the opinion that the Appellant Jayendra was a child within the meaning of this provision on the date of the offence. Section 27 of the aforesaid Act says that notwithstanding anything to the contrary in any law, no court shall sentence a child to imprisonment for life or to any term of imprisonment. Section 29 provides, insofar as it is material, that if a child is found to have committed an offence punishable with imprisonment, the court may order him to be sent to an approved school for such period of stay as will not exceed the attainment by the child of the age of 18 years. In the normal course, we would have directed that the Appellant Jayendra should be sent to an approved school but in view of the fact that he is now nearly 23 years of age, we cannot do so. 4. For these reasons, though the conviction of the Appellant Jayendra has to be upheld, we quash the sentence imposed upon him and direct that he shall be released forthwith. 19. In Bhoop Ram vs. State of U.P, (1989) 3 SCC 1 , also the case arose under the Uttar Pradesh Children Act, 1951. The controversy that was surrounding the question was whether the appellant had actually been a juvenile/child under the definition of the Act at the time of commission of the offence. Although such a plea had been taken before both the trial Court as also the Sessions Court, the trial Court had merely taken into account such a plea for the purpose of awarding a reduced sentence of life imprisonment instead of death penalty for the offences he had been charged with and convicted for. Although such a plea had been taken before both the trial Court as also the Sessions Court, the trial Court had merely taken into account such a plea for the purpose of awarding a reduced sentence of life imprisonment instead of death penalty for the offences he had been charged with and convicted for. When the appeal reached the Supreme Court, this Court directed an enquiry by the Sessions Judge to determine if the appellant had actually been a child at the time of the incident. The Sessions Judge conducted an enquiry, taking into account the opinion of the Chief Medical Officer and the school certificate that had been produced by the appellant, and concluded that the appellant had not been a 'child' at the time concerned. However, the Supreme Court rejected the finding of the Sessions Judge being based on surmises and essentially relying upon the school certificate produced by the appellant to conclude that he indeed had been a 'child' at the time when the offence had been committed. 20. On the question of sentencing, this Court followed the precedent in Jayendra, (1981) 4 SCC 149 and quashed the sentence, observing, (Bhoop Ram case, (1989) 3 SCC 1 ) 8. Since the Appellant is now aged more than 28 years of age, there is no question of the Appellant now being sent to an approved school under the U.P. Children Act for being detained there. In a somewhat similar situation, this Court held in Jayendra v. State of U.P. that where an accused had been wrongly sentenced to imprisonment instead of being treated as a "child" Under Section 2(4) of the U.P. Children Act and sent to an approved school and the accused had crossed the maximum age of detention in an approved school viz. 18 years, the course to be followed is to sustain the conviction but however quash the sentence imposed on the accused and direct his release forthwith. Accordingly, in this case also, we sustain the conviction of the Appellant under all the charges framed against him but however quash the sentence awarded to him and direct his release forthwith. The appeal is therefore partly allowed insofar as the sentence imposed upon the Appellant are quashed. 21. In Bhola Bhagat, (1997) 8 SCC 720 this Court had discussed the present issue at hand at quite some length. The appeal is therefore partly allowed insofar as the sentence imposed upon the Appellant are quashed. 21. In Bhola Bhagat, (1997) 8 SCC 720 this Court had discussed the present issue at hand at quite some length. Three of the Appellants had taken the plea of juvenility in assailing the order of the High Court sentencing them to imprisonment for life for offences Under Section 302/149, Indian Penal Code. The Supreme Court agreed with the findings of the lower Courts as regards the involvement of the Appellants in the commission of the offence and held that the same had been established beyond reasonable doubt. However, on the question of sentencing, the Court looked into the plea of juvenility as had been claimed by the Appellants. The Court had noted the interplay of the two Acts in question viz. The Bihar Children Act, 1982 and the Juvenile Justice Act, 1986 and that the Bihar Act had already been in force at the time of the commission of the offence. It took note of the decisions of this Court in Bhoop Ram, (1989) 3 SCC 1 and Jayendra, (1981) 4 SCC 149 and emphasized that in these cases although the conviction was sustained the sentence had been quashed taking into account the fact that the Appellants had crossed the age of juvenility and could not be sent to an 'approved school' as had been contemplated under the relevant Children's Act. 22. The Court proceeded to discuss the three Judge Bench decision of this Court in Pradeep Kumar, 1995 Supp. (4) SCC 419 and quoted the following paragraph from that case:- "12. At the time of the occurrence Pradeep Kumar Appellant, aged about 15 years, was resident of Railway Colony, Naini, Krishan Kant and Jagdish Appellants, aged about 15 years and 14 years, respectively, were residents Of Village Chaka, P.S. Naini." (Pradeep Kumar Case, 1995 Supp (4) SCC 419). At the time of granting special leave, two Appellants therein produced school-leaving certificate and horoscope respectively showing their ages as 15 years and 13 years at the time of the commission of the offence and so far as the third Appellant is concerned, this Court asked for his medical examination and on the basis thereof concluded that he was also a child at the relevant time. The Court then held: (Pradeep Kumar Case, 1995 Supp (4) SCC 419, SCC p. 420, paras 3 and 4) 3. It is, thus, proved to the satisfaction of the Court that on the date of occurrence, the Appellants had not completed 16 years of age and as such they should have been dealt with under the U.P. Children Act instead of being sentenced to imprisonment on conviction Under Sections 302/34 of the Act. 4. Since the Appellants are now aged more than 30 years, there is no question of sending them to an approved school under the U.P. Children Act for detention. Accordingly while sustaining the conviction of the Appellants under all the charges framed against them, we quash the sentences awarded to them and direct their release forthwith. The appeals are partly allowed in the above terms. (Emphasis supplied) 23. The Court in its final conclusion in Bhola Bhagat, (1997) 8 SCC 720 , adopted the same course as had been done in the aforementioned cases and observed:- 15. The correctness of the estimate of age as given by the trial court was neither doubted nor questioned by the State either in the High Court or in this Court. The parties have, therefore, accepted the correctness of the estimate of age of the three Appellants as given by the trial court. Therefore, these three Appellants should not be denied the benefit of the provisions of a socially progressive statute. In our considered opinion, since the plea had been raised in the High Court and because the correctness of the estimate of their age has not been assailed, it would be fair to assume that on the date of the offence, each one of the Appellants squarely fell within the definition of the expression "child". We are under these circumstances reluctant to ignore and overlook the beneficial provisions of the Acts on the technical ground that there is no other supporting material to support the estimate of ages of the Appellants as given by the trial court, though the correctness of that estimate has not been put in issue before any forum. Following the course adopted in Gopinath Ghosh, 1984 Supp SCC 228, Bhoop Ram, 1989 (3) SCC 1 and Pradeep Kumar: 1995 Supp (4) 419 cases while sustaining the conviction of the Appellants under all the charges we quash the sentences awarded to them. 16. Following the course adopted in Gopinath Ghosh, 1984 Supp SCC 228, Bhoop Ram, 1989 (3) SCC 1 and Pradeep Kumar: 1995 Supp (4) 419 cases while sustaining the conviction of the Appellants under all the charges we quash the sentences awarded to them. 16. The Appellants Chandra Sen Prasad, Mansen Prasad and Bhola Bhagat, shall, therefore, be released from custody forthwith, if not required in any other case. Their appeals succeed to the extent indicated above and are partly allowed. 24. In Upendra Kumar, (2005) 3 SCC 592 , this Court reiterated the position that has been adopted in the aforementioned cases. The Appellant had been handed down a life imprisonment for his conviction. Under Section 302 of IPC. He had been a juvenile, as under the Juvenile Justice (Care and Protection of Children) Act, 2000, on the day of the commission of the offence but, however, the protection of the Act had not been afforded to him. Through the report of the Medical Board, it had been fully established that the Appellant was between the age of 17 and 18 years on the date of the report which was dated some three months after the day of incident in question. Even the order of sentence recorded the age of the Appellant as 17 years. The Court thus concluded that the Appellant was liable to be granted the protection of the Juvenile Justice Act, 2000. As regards the course to be adopted as a sequel to such conclusion, this Court referred to the earlier decisions such as in the case of Bhola Bhagat, (1997) 8 SCC 720 , Bhoop Ram, (1989) 3 SCC 1 etc. The Court observed in this regard: 4. Mr. Sharan has cited various decisions but reference may be made only to Bhola Bhagat vs. State of Bihar, (1997) 8 SCC 720 since earlier decisions on the issue in question have been noticed therein. In Bhola Bhagat case referring to the decisions in Gopinath Ghosh v. State of West Bengal, 1984 Supp SCC 228, Bhoop Ram vs. State of U.P., (1989) 3 SCC 1 and Pradeep Kumar vs. State of U.P., 1995 Supp (4) Sec 419 this Court came to the conclusion that the accused who were juvenile could not be denied the benefit of the provisions of the Act then in force, namely, the Juvenile Justice Act, 1986. 5. 5. The course this Court adopted in Gopinath Ghosh case, 1984 Supp SCC 228 as also in Bhola Bhagat case, (1997) 8 SCC 720 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 Session, 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. 25. A similar course of action was taken in a recent decision of this Court in Vaneet Kumar Gupta vs. State of Punjab, (2009) 17 SCC 587 . Challenge in that appeal was mainly on the award of sentence of life imprisonment to the Appellant and to determine whether adequate material had been available on record to hold that the Appellant had not attained the age of 18 years on the date of commission of the offence. Upon an affidavit filed by the Deputy Superintendent of Police pursuant to inquiries made by him, it was reported that the age of the Appellant as on the date of occurrence had been about 15 years. The inquiry report inspired the confidence of the Court and the Court held that the Appellant cannot be denied the benefits of the Juvenile Justice (Care and Protection of Children) Act, 2000. 26. As regards the question of sentence, this Court observed, (Vaneet Kumar Gupta vs. State of Punjab, (2009) 17 SCC 587 :- 12. The inquiry report, which inspires confidence, unquestionably establishes that as on the date of occurrence, the Appellant was below the age of eighteen years; was thus, a "juvenile" in terms of the Juvenile Justice Act and cannot be denied the benefit of the provisions of the said Act. Therefore, having been found to have committed the aforementioned offence, for the purpose of sentencing, he has to be dealt with in accordance with the provisions contained in Section 15 thereof. Therefore, having been found to have committed the aforementioned offence, for the purpose of sentencing, he has to be dealt with in accordance with the provisions contained in Section 15 thereof. As per Clause (g) of Sub-section (1) of Section 15 of the Juvenile Justice Act, the maximum period for which the Appellant could be sent to a special home is a period of three years. 13. Under the given circumstances, the question is what relief should be granted to the Appellant at this juncture. Indisputably, the Appellant has been in prison for the last many years and, therefore, at this distant time, it will neither be desirable nor proper to refer him to the Juvenile Justice Board. Accordingly, we follow the course adopted in Bhola Bhagat v. State of Bihar, (1997) 8 SCC 720 , sustain the conviction of the Appellant for the offence for which he has been found guilty by the Sessions Court as affirmed by the High Court and at the same time quash the sentence awarded to him. 14. Resultantly, the appeal is partly allowed to the extent indicated above. We direct that the Appellant shall be released forthwith, if not required in any other case. 10. Having regard to the decision of the Apex Court in Vijay Singh (supra), this Court is of the view that since the petitioners were juvenile on the day of commission of the offence and the findings of conviction do not suffer from infirmity whatsoever and in addition thereto those findings are not under challenge by the petitioners, this Court, while up holding the conviction imposed on the petitioners, set aside the sentence and direct that the petitioners be released forthwith, however, with a condition that their conduct has to be supervised by the Probation Officer, West Tripura at Khowai for a period of 1(one) year from this day and if the Probation Officer finds at any point of time that their conduct is not amenable to the good conduct, he would be at liberty to report against them to the respective Police Stations for taking action appropriate to the circumstances as per law. Accordingly, this appeal is partly allowed. Send down the LCRs forthwith.