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2017 DIGILAW 1174 (ALL)

SHEO SINGH v. STATE OF U. P.

2017-05-03

RAMESH SINHA, UMESH CHANDRA SRIVASTAVA

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JUDGMENT : 1. Heard Sri Jitendra Singh, learned counsel for the applicant and Sri Ashish Pandey, learned AGA for the State. Sri S.K. Singh Yadav, learned counsel for the complainant is not present, though the matter has been called out in the revised list. 2. With the consent of learned counsel for the parties, the present appeal is being decided at this stage only as the appellant has been declared Juvenile by the Juvenile Justice Board on his application moved under Section 7-A of the Juvenile Justice (Care and Protection of Children) Act, 2000. 3. This appeal has been filed against the judgment and order dated 2.12.2009 of Additional Sessions Judge, Fast Track Court No.2, Fatehpur passed in Sessions Trial No.775 of 2006 (State vs. Sheo Singh and others) and ST No.776 of 2006 (State of U.P. vs. Sheo Singh) by which the appellant while being acquitted under Section 25 Arms Act in ST No.776 of 2006, he has been convicted under Section 302 IPC in ST No.775 of 2006 and has been sentenced to undergo life imprisonment with fine Rs.10,000/- and in default to undergo one year simple imprisonment. 4. It appears that on the plea of juvenility taken by the appellant in appeal before us on the ground that his date of birth being 5.3.1989 in High School Certificate, he was juvenile on the date of offence i.e. 22.8.2006, the appellant vide order dated 1.12.2009 of this Court was directed to make a proper application in this regard under Section 7-A of the Juvenile Justice (Care and Protection of Children) Act, 2000 (in brief, “the J.J. Act”) before the Juvenile Justice Board, alongwith copy of order of this Court and it was provided that in the event of making such application, the Board shall decide the question of juvenility of the appellant within a period of one month from the date of production of copy of the order. It further appears that pursuant to order of this Court, an application was made before the Juvenile Justice Board, Fatehpur, under Section 7-A of the J.J. Act alongwith copy of order dated 1.12.2009 of this Court and it was prayed therein that the age of appellant being less than 18 years on the date of alleged incident, he be declared a juvenile in conflict of law. It further appears that upon the receipt of application alongwith copy of order of this Court. The J.J. Board, Fatehpur proceeded with inquiry as provided under Section 7-A of the J.J. Act read with Rule 12 of the Juvenile Justice (Care and Protection of Children) Rules, 2007 (in short “J.J. Rules”) and on the basis of date of birth of the appellant being recorded as 5.3.1989 in his High School Certificate declared him juvenile in conflict with law vide order dated 7.1.2017, as he was below 18 years of age on the date of incident which is said to have taken place on 22.8.2016. A copy of order of the J.J. Board has been filed on the record of appeal by the appellant through supplementary affidavit and the J.J. Board has also sent a fax copy of the order vide letter No.41-42/JJB/2017 dated 6.3.2017. It further appears that the order of the J.J. Board has attained finality, as no appeal is reported to have been filed against the order of the J.J. Board by the State of U.P. 5. A perusal of the record shows that the appellant was arrested in the crime in question on 30.8.2006 and has been lodged in jail since 31.8.2006. He has been convicted by the learned Additional Sessions Judge for the offence of murder under Section 302 IPC and has been sentenced to undergo life imprisonment with fine Rs.10,000/-, and in case of default to undergo one year simple imprisonment after concluding the complete proceeding of trial. However, appellant being Juvenile on the date of incident, in view of provisions laid down in J.J. Act , the order of conviction and sentence recorded by the learned Additional Sessions Judge is erroneous and, therefore, the order of sentence cannot be maintained. However, taking a note of the fact that appellant has been convicted after holding complete proceedings of trial and affording opportunity of giving evidence to both parties, the order of conviction passed against the appellant can be maintained and appellant may be forwarded to J.J. Board alongwith record of the case for sentencing purpose. However, taking a note of the fact that appellant has been convicted after holding complete proceedings of trial and affording opportunity of giving evidence to both parties, the order of conviction passed against the appellant can be maintained and appellant may be forwarded to J.J. Board alongwith record of the case for sentencing purpose. But, as appellant is lodged in jail since 31.8.2006 and has already served 10 years and 8 months punishment, no fruitful purpose would be served if the appellant is forwarded to J.J. Board for sentencing purposes more so when no substantiative punishment may be awarded to him but, at the most, he may be sent to special home for a maximum period of three years. 6. Thus, in the peculiar facts and circumstances of the case while maintaining the order of conviction of the appellant recorded under Section 302 IPC, we direct the jail authorities to release the appellant forthwith from the offence in question i.e. in Sessions Trial No.775 of 2006 arising out of Case Crime No.114 of 2006, State vs. Sheo Singh and others, under Section 302 IPC, Police Station Zafarganj, District Fatehpur, if not required in any other case. 7. Appeal stands disposed of accordingly.