Research › Search › Judgment

Calcutta High Court · body

2013 DIGILAW 693 (CAL)

Kamal Naskar v. State of West Bengal

2013-09-18

ASHIM KUMAR ROY, MRINAL KANTI SINHA

body2013
Judgment ASHIM KUMAR ROY, J. This criminal appeal is directed against an order of conviction where this appellant and seven others were convicted under Sections 302/364/34 of the Indian Penal Code and therein sentenced to suffer imprisonment for life and rigorous imprisonment for ten years respectively and to pay fine with default clause. 2. The appellant alone in this appeal challenge the order of conviction and sentence. After admission, an application for suspension of sentence was moved. At the time, a plea of juvenility was taken and it was contended by his learned Counsel that he is below the age of 18 years on the date of the alleged incident. 3. Having regard to such plea, this court by its order passed on 9th April 2013 directed the trial court to hold an enquiry in terms of the provision of Juvenile Justices (Care and Protection of Children) Act, 2000 and to determine the age of the appellant on the date of the alleged incident. 4. In terms of our aforesaid order, an enquiry has been held and the result thereof has been place before us. 5. Now, we find that during the enquiry from the side of the appellant, his father, mother, Panchayat Pradhan and the Teacher of the school were he studied were examined as P.W./1, P.W./2, P.W./3 and P.W./4. We further find at the same time several documentary evidence were produced in court, namely, Adhar Card, Voter Identity Card, i.e. Electoral Photo Identity Card and the certificate issued by the Panchayat Pradhan and the school authority. While the exact of the school Register has been marked as Exhibit-5, the rest have been exhibited as Exhibit 1, 2 and 4. We further find the learned Judge was not inclined to place any reliance on the Electoral Photo Identity Card and the certificate issued by the Panchayat Pradhan since those were issued after the order of conviction was passed. He was not inclined to rely on the age recorded in the Admission Register for the reason reflected in his order. At that stage the learned court below directed that a Medical Board be formed and by the said Board, the age of the appellant on the date of the incident be determined. He was not inclined to rely on the age recorded in the Admission Register for the reason reflected in his order. At that stage the learned court below directed that a Medical Board be formed and by the said Board, the age of the appellant on the date of the incident be determined. Accordingly, a Medical Board was formed and the appellant was undergone necessary radiological examination and finally the Board came to the conclusion that on 9th May, 2013, he was aged about 27 to 30 years and, thereafter, the court concluded on the date of the alleged incident he was below the age of 18 years and was a juvenile in conflict with law. 6. The findings of the court below has not been challenged from the side of the State and before us the correctness of the same has not been disputed by Mr. Ganguli. 7. In the result, the appellant ought to be treated as “Juvenile in conflict with law on the date of the commission of the alleged offence” and in terms of the mandatory provision of Section 16 of the Juvenile Justices (Care & Protection of Children) Act, 2000 imprisonment for any term far less imprisonment for life or committed him to prison, in default of payment of find is illegal and without jurisdiction. 8. We have been informed and not disputed from the side of the State, the appellant is in custody for about nine years excluding the period of remission and such period is more than the period for which a juvenile in conflict with law may be confined in a special home on finding of his guilt according to the provision of the West Bengal Correctional Services Act. 9. Having regard to that we set aside the sentence. 10. It is directed that if not the appellant is detained in custody in connection with other cases, he shall at once be released from jail. 11. In the result the appeal stands allowed for the reasons stated herein above. 12. Office is directed to supply urgent xerox certified copy of this order to the parties, if applied for, as early as possible. Mrinal Kanti Sinha, J. : I agree.