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2013 DIGILAW 981 (JHR)

Chandan Kumar v. State of Jharkhand

2013-08-20

N.N.TIWARI, P.P.BHATT

body2013
ORDER 1. The sole appellant Chandan Kumar, who, having been convicted under Section 302 of the Indian Penal Code and also under Section 27 of the Arms Act, was sentenced for imprisonment for life along with a fine of Rs. 2000/- under Section 302 of the Indian Penal Code and for one year rigorous imprisonment under Section 27 of the Arms Act, after serving about seven years of his sentence, claimed himself to be a juvenile on the date of commission of offence in this Court during pendency of this appeal. 2. He also filed an application under Section 7-A read with Section 49 of the Juvenile Justice (Care and Protection of Children) Act, 2000 (here-in-after referred to as the Act) praying for his remand to the Juvenile Justice Board, Garhwa for the purpose of holding an inquiry regarding his juvenility and for further proceeding thereafter in accordance with law. 3. Vide order dated 9.12.2011, the matter was referred to the Juvenile Justice Board, Garhwa for determination of the age of the appellant and submission of report. The report dated 16.1.2012 was thereafter submitted holding the appellant to be a juvenile. On the basis of the report of the Board, the age of the appellant, on the date of occurrence, comes to 15 years, 5 months and 25 days. 4. An objection to the report was raised by the learned APP, particularly, regarding the procedure adopted by the Juvenile Justice Board in determining the age of the appellant. 5. Parties were heard on the said objection and vide order dated 1.8.2012, matter was remitted to the Juvenile Justice Board, Garhwa for holding a fresh inquiry in accordance with law and submitting report thereafter. 6. The J.J. Board submitted its fresh report dated 11.1.2013, assessing the age of the appellant as 21-23 years on 18.12.2012 and observing that he was found below 18 years of age on the date of occurrence. 7. On receipt of the said report of the Board, learned counsel for the appellant prayed hr passing order in accordance with law. 8. The J.J. Board submitted its fresh report dated 11.1.2013, assessing the age of the appellant as 21-23 years on 18.12.2012 and observing that he was found below 18 years of age on the date of occurrence. 7. On receipt of the said report of the Board, learned counsel for the appellant prayed hr passing order in accordance with law. 8. Learned counsel for the appellant submitted that the appellant being held to be a juvenile on the date of commission of the offence, is required to be dealt with under the provisions of Juvenile Justice (Care and Protection of Children) Act, 2000 and the case be sent to the Juvenile Justice Board, Garhwa for holding inquiry under the provisions of Section 14 of said Act. 9. Learned counsel further submitted that since the said point was not earlier taken by the appellant due to ignorance of law, he was tried in the regular Court and has been convicted in the sessions trial under Section 302 of the Indian Penal Code and under Section 27 of the Arms Act and sentenced to undergo life imprisonment under Section 302 of the Indian Penal Code along with fine of Rs. 2000/- and rigorous imprisonment for one year for committing offence under Section 27 of the Arms Act. Both the sentences are to nm concurrently. 10. He submitted that the appellant thereafter has already served sentence for more than 8 years by now. 11. Learned counsel submitted that in such a situation, directing for inquiry, by the Board, regarding the offence. for which he has been charged would offend the object and spirit of the said law, as the appellant has already suffered the rigour of the regular trial in the Sessions Court and has also served the sentences or more than 8 years, whereas Section 15(1)(g) of the Act prescribes maximum period of stay of juvenile in a special home up to three years. 12. He urged that the appellant has already served the sentences for more than 8 years and it would not be just and proper in the interest of justice to forward the appellant to the Board for passing appropriate order as envisaged under Section 7A(2) of the Act. 13. 12. He urged that the appellant has already served the sentences for more than 8 years and it would not be just and proper in the interest of justice to forward the appellant to the Board for passing appropriate order as envisaged under Section 7A(2) of the Act. 13. Learned counsel submitted that Hon'ble Supreme Court has dealt with almost similar case in Lakhan Lal vs. State of Bihar reported in AIR 2011 SC 842 and this case is squarely covered by the said decision. 14. Learned counsel submitted that in the instant case, facts and circumstances are almost similar to the Lakhan Lars case (supra). As per report of the Juvenile Justice Board, the appellant was a juvenile on the date of commission of the offence. However, due to ignorance he was tried by the regular Sessions Court and convicted under Section 302 of the Indian Penal Code and Section 27 of the Arms Act and sentenced to undergo life imprisonment under Section 302 of the Indian Penal Code coupled with fine of Rs. 2000/- and one year rigorous imprisonment for committing offence under Section 27 of the Arms Act. Appellant has already served the sentences for more than 8 years and the appellant deserves to be released after setting aside his sentences in the light of the decision of the Apex Court in Lakhan Lars case. 15. Learned APP opposed the contention and prayer of the appellant. He submitted that appellant all remained silent and never made the claim of juvenility earlier. He was tried for the offences under Section 302 of the Indian Penal Code and Section 27 of the Arms Act and convicted and sentenced to undergo life imprisonment under Section 302 of the Indian Penal Code along with fine of Rs. 2000/- and one year rigorous imprisonment for committing offence under Section 27 of the Arms Act. Having not taken the said ground earlier, the appellant does not deserve any benefit of the said Act. 16. Learned APP submitted that alternatively he is required to be dealt with the provision under Section 15 of the said Act and he can be forwarded to the Juvenile Justice Board for passing the appropriate order under Section 15 of the said Act. He further submitted that under the provision of Section 7A(2), the sentence passed by the Court shall be deemed to ineffective. 17. He further submitted that under the provision of Section 7A(2), the sentence passed by the Court shall be deemed to ineffective. 17. Learned APP submitted that the effect of Section 7A(2) was not considered in the decisions of the Hon'ble Apex Court, as referred to and relied upon by the learned counsel for the appellant and as such, this case is not covered by those decisions. 18. Having heard learned counsel for the parties and perused the impugned judgment of conviction of the appellant as well as the reports submitted by the Juvenile Justice Board, Garhwa, we find that learned trial Court, after thorough discussion of the facts evidences on record, found that prosecution was able to establish the charges under Section 302 of the Indian Penal Code and Section 27 of the Arms Act against the appellant. 19. Learned Court below has come to the said findings on detailed discussion and consideration of the testimonies of PW 1, PW 2, PW 3, PW 5 as well as medical evidence of PW 7. Learned trial Court found the charges against the appellant fully established beyond all reasonable doubt. 20. On meticulous scrutiny of the facts and evidence on record, we find no infirmity in the said findings of the learned trial Court. 21. In view of the sufficient materials and evidences to establish the guilt of the appellant, learned counsel for the appellant has not challenged the findings and conviction of the appellant but has persuasively prayed for the appellant's release on the ground of his juvenility on the date of commission of the offence by setting aside the impugned sentence, in the light of the judgment of the Hon'ble Supreme Court in the case of Lakhan Lal (supra). 22. Learned APP tried to persuade us to forward the juvenile to the Juvenile Justice Board for passing appropriate order, in the light of the provisions under Section 7A(2) of the Act. 23. Having heard extensive arguments of the both parties and examined the provisions of Juvenile Justice (Care and Protection of Children) Act, 2000 as also the several decisions of the Hon'ble Supreme Court, including the case of Lakhan Lal (supra) we are unable to accept the submissions of learned APP. 24. Section 7-A of the Act provides procedure to be followed when claim of juvenility is raised before any Court. 24. Section 7-A of the Act provides procedure to be followed when claim of juvenility is raised before any Court. Section 7-A runs thus:- "7-A. Procedure to be followed when claim of juvenility is raised before any Court-(1) Whenever a claim of juvenility is raised before any Court or a Court is of the opinion that an accused person was a juvenile on the date of commission of the offence, the Court shall make an inquiry, take such evidence as may be necessary (but not an affidavit) so as to determine the age of such person, and shall record a finding whether the person is a juvenile or a child or not, stating his age as nearly as may be : Provided that a claim of juvenility may be raised before any Court and it shall be recognized at any stage, even after final disposal of the case, and such claim shall be determined in terms of the provisions contained in this Act and the rules made there under, even if the juvenile has ceased to be so on or before the date of commencement of this Act. (2) If the Court finds a person to be a juvenile on the date of commission of the offence under sub-section (1), it shall forward the juvenile to the Board for passing appropriate order, and the sentence if any, passed by a Court shall be deemed to have no effect." 25. On plain reading of the said Section, we find that the claim of juvenility can be raised and determined, at any stage, even if the juvenile has ceased to be so, on or before the date of commencement of this Act. 26. In view of that provision, the appellant's claim was entertained by this Court and got enquired by the Board. 27. The Juvenile Justice Board, Garhwa after holding enquiry reported that the appellant was juvenile on the date of commission of the offence. The said report has not been challenged by the State respondent. 28. Section 7A(2) provides that if the Court finds a person to be a juvenile on the date of commission of the offence, it shall forward the juvenile to the Board for passing appropriate order, and the sentence if any, shall be deemed to have no effect. 29. The said report has not been challenged by the State respondent. 28. Section 7A(2) provides that if the Court finds a person to be a juvenile on the date of commission of the offence, it shall forward the juvenile to the Board for passing appropriate order, and the sentence if any, shall be deemed to have no effect. 29. Once the appellant is held to be a juvenile, he should have been forwarded to the Board for passing appropriate order under the said provision. 30. However, Section 15 of the Act, which makes a provision for passing the order regarding juvenile by the Board, prescribes maximum penalty of sending juvenile to a special home for a period of three years vide Section 15(1)(g). 31. It is not disputed at bar that the appellant -has already served sentences for more than 8 years. 32. In the case of Lakhan Lal vs. State of Bihar, AIR 2011 SC 842 appellant-Lakhan Lal was aggrieved by dismissal of his criminal appeal by the High Court, whereby his conviction under Section 302 read with Section 34 of the Indian Penal Code for committing murder was affirmed by the High Court. In course of hearing of the appeal by the Apex Court it was submitted that at the time of commission of the offence, the said appellant was a juvenile within the meaning of Section 2(k) of the said Act and therefore, the order of sentences passed against the appellant are liable to be set aside. Hon'ble Supreme Court thereafter considered the said submissions in the light of earlier judicial pronouncements, including the decision of the Constitution Bench in the case of Pratap Singh vs. State of Jharkhand and another, 2005 (2) East Cr C 244 (SC): AIR 2005 SC 2731 and the decisions in the cases of Bhola Bhagat vs. State of Bihar, 1998 (1) East Cr C 735 (SC): 1997 (8) SCC 720 ; Gopinath Ghosh vs. 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) SCC 419. Hon'ble Apex Court then ruled that while sustaining the conviction of the appellant for the charges, sentences awarded to them need to be set aside. In the case of Lakhan Lal (supra), on the date of consideration, the appellants had crossed the age of 40 years. (4) SCC 419. Hon'ble Apex Court then ruled that while sustaining the conviction of the appellant for the charges, sentences awarded to them need to be set aside. In the case of Lakhan Lal (supra), on the date of consideration, the appellants had crossed the age of 40 years. It was, thus, held that it would not be conducive to the environment in the special home and also in view of the fact that they had undergone an actual period of sentences of more than three years-the maximum period provided under Section 15 of the 2000 Act. While sustaining the conviction of the appellants for the offences punishable under Section 302 read with Section 34 of the Indian Penal Code, the sentences awarded to them was set aside. 33. In view of the admitted facts of the instant case, we are of the view that the case of the appellant falls within the ambit of law laid down by the Hon'ble Supreme Court in Lakhan Lal's case (supra). 34. In the instant case, the appellant is now aged about 27 years and we feel that it would not be conducive to send him to special home, particularly, when he has already undergone more than 8 years period of sentences as against the maxin1um period of penalty of three years confinement in a special home as provided under Section 15(1)(g) of the Act. 35. For the reasons recorded herein-before, while confirming the conviction of the appellant under Section 302 of the Indian Penal Code and Section 27 of the Arms Act, we set aside the sentences awarded to him. 36. The appellant is, accordingly, directed to be released forthwith, if not required in any other case. 37. This appeal is, accordingly, disposed of. Appeal disposed of.