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2014 DIGILAW 26 (PAT)

Chandan Jha @ Munchun Jha v. State of Bihar

2014-01-08

ADITYA KUMAR TRIVEDI

body2014
ADITYA KUMAR TRIVEDI, J.:–Heard learned counsel for the appellant as well as learned APP for the State. 2. Sole appellant, Chandan Jha @ Munchun Jha who has been found guilty for an offence punishable under Section 376 of the IPC by the 1st Additional Sessions Judge, Samastipur in Sessions Trial No. 635/2003 vide judgment dated 30.04.2013 and sentenced to undergo RI for 10 years as well as also slapped with fine appertaining to Rs. 10,000/- and in default thereof to undergo RI for one year additionally vide order dated 04.05.2013, challenged the finding of guilt as well as sentence under present appeal. 3. Sarojni Devi (PW-7) had given her Fard-e-beyan on 13.09.2003 at about 8.15 p.m. at Sub-Divisional Hospital, Dalsinghsarai alleging inter alia that on the same day at about 5:00 p.m. while her daughter Medharani Supriya (victim) aged about seven years was playing along with her cousin, Kalyani, was enticed away by the appellant on the pretext of providing carom-board to the house of Pramod Jha which was vacant at that very time, as the family members of Pramod Jha had gone to Begusarai for treatment of his mother, where an offence of rape was committed upon Medharani Supriya by the appellant, Chandan Jha @ Munchun Jha. The aforesaid event was known to her after making query from Medharani Supriya regarding the cause of crime. Then thereafter, the informant had gone to the place of appellant where she was scolded by his family members. After having registration of Dalsinghsarai P.S. Case No. 134 of 2003, the police swung into investigation and ultimately, submitted charge-sheet whereupon the case being conclusively triable by the court of sessions found committed and tried, ultimately, leading to conviction and sentence against appellant. 4. The defence case happens to be that of complete denial of the occurrence. It is also apparent that one DW, i.e, DW-1 has also been examined on behalf of defence Apart from series of Exhibits, it is also apparent that 9 PWs have been examined on behalf of prosecution to support its case. 5. While assailing the judgment of conviction and sentence, it has been submitted on behalf of appellant that there is grave and apparent error persisting on the record which, if taken into account, will scrap the findings so recorded by the learned lower court at the initial stage itself. 5. While assailing the judgment of conviction and sentence, it has been submitted on behalf of appellant that there is grave and apparent error persisting on the record which, if taken into account, will scrap the findings so recorded by the learned lower court at the initial stage itself. To support the same, it has been submitted that though, the appellant has not raised the issue during course of trial but the fact remains that appellant is a juvenile in terms of Section 2 (K) of the Juvenile Justice Act in the background of the fact that the Fard-e-beyan itself contains the age of the appellant to be of 18 years. Not only this, it has also been submitted that the statement of appellant was recorded on 17.02.2012 on which dated his age was found 25 years while the court had estimated as 26 years. The statement was recorded after approximately 9 years and deducting the aforesaid period, the age comes in between 16-17 years. As such, apart from other infirmities persisting on the record, the sentence so recorded against appellant in the aforesaid background is contrary to the spirit of law. 6. It has also been submitted that after introduction of Section 7A, the plea of juvenility is found entertainable at any stage, therefore, this Court while considering the appeal is found fully competent to entertain the plea of the appellant. 7. The learned APP fairly concedes. 8. Juvenile in conflict with law is found defined under Sub-section K of Section-2 of the Juvenile Justice Act which reads as follows: “Section-2 K— "juvenile" or "child" means a person who has not completed eighteenth year of age; 9. Section-7A has been inserted by an Amendment of 2006 and after having a cursory glance thereof, it is apparent that apart from it application in retrospective manner, peeps into the issue even having finally disposed of, if so, claimed by the aggrieved. For better appreciation the same is incorporated below:– “[7A. Section-7A has been inserted by an Amendment of 2006 and after having a cursory glance thereof, it is apparent that apart from it application in retrospective manner, peeps into the issue even having finally disposed of, if so, claimed by the aggrieved. For better appreciation the same is incorporated below:– “[7A. 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 thereunder, 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 orders and the sentence, if any, passed by a court shall be deemed to have no effect.] 10. Therefore, as per definition of juvenile in conflict with law so laid down under Sub-clause K of Section-2, it is apparent that juvenility is to be ascertained and claimed uptil the age of 18 years. Certainly, from the Fard-e-beyan itself the age of the delinquent/appellant has been traced out as 18 years, Moreover, the aforesaid event is found also fortified while recording the statement of the appellant whereunder apart from disclosing himself to be aged about 25 years, the court had also estimated his age to be 26 years. 11. Certainly, from the Fard-e-beyan itself the age of the delinquent/appellant has been traced out as 18 years, Moreover, the aforesaid event is found also fortified while recording the statement of the appellant whereunder apart from disclosing himself to be aged about 25 years, the court had also estimated his age to be 26 years. 11. In case, there is controversy with regard to ascertainment of the age of delinquent/appellant in conflict with law, the procedure has been prescribed and in likewise manner, documents are also categorized for consideration while deciding the issue under Rule-11 of Bihar Juvenile Justice (Care and Protection of Children) Rules, 2012. 12. However, where the prosecution itself had admitted the age of the appellant to be 18 years, then in that event, certainly there was no controversy existing and on account thereof, the enquiry so attracted therefrom is not warranted. Consequent thereupon, the appellant, Chandan Jha @ Munchun Jha is found to be juvenile and on account thereof, he is found immune from facing any sort of sentence to be inflicted for an offence for which he has been convicted for as is evident from Section-16 of the Juvenile Justice Act. 13. The nature of punishment what could be inflicted against a juvenile in conflict with law is incorporated under Section-15 of the Act. 14. Therefore, maintaining the conviction of the appellant under Section 376 of the IPC, the sentence so inflicted by the learned lower court is set aside to that extent. The appeal is allowed in aforesaid terms. 15. The matter is transmitted to the Juvenile Justice Board, Samastipur for passing appropriate order in terms of Section 15 of the Act. The learned Juvenile Justice Board is further directed to have the compliance of Section 15 of the Act after hearing both sides.