Research › Search › Judgment

Patna High Court · body

2017 DIGILAW 882 (PAT)

Pappu Singh v. State of Bihar

2017-07-13

ADITYA KUMAR TRIVEDI

body2017
ORDER Appellants, Pappu Singh and Shankar Singh have faced Sessions Trial bearing no. 301/96/262/14 before the court of Additional Sessions Judge-3rd, Aurangabad who, vide judgment of conviction dated 30.08.2016 found them guilty for an offence punishable under Sections 307/34 of the IPC, 27 of the Arms Act and for that, they independently, have been directed to undergo RI for 10 years as well as to pay fine of Rs. 5000/- and in default thereof, to undergo SI for 2 months additionally, RI for 3 years, to pay fine of Rs. 1000/- and in default thereof, to undergo SI for 1 month additionally, under both heads respectively with a further direction to run the sentences concurrently. 2. The instant appeal is yet to be listed under the heading ‘for hearing’. During midst thereof, Interlocutory Application No. 343/2017 has been filed on behalf of appellant, Pappu Singh to suspend/stay the conviction recorded by the judgment impugned. However, the same has never been pressed as subsequently, thereof, Interlocutory Application No. 439/2017 has been filed on his behalf praying therein to declare him juvenile and so, his case be split up in terms of Juvenile Justice (Care and Protection of Children) Act, remitting the matter to the Juvenile Justice Board to pass appropriate order in context of appellant. 3. Heard learned counsel for the appellant as well as learned APP for the State. 4. In order to substantiate such plea, it has been submitted on behalf of appellant that his real name happens to be Vivek Kumar and in the name of Vivek Kumar, he appeared in Bihar School Examination Board (Matric Examination) held in the year 1987 and was declared passed in 2nd Division. His date of birth has been shown therein as 13th April 1973. Date of occurrence is of 04.08.1990 and so he was of 17 years 3 months and 21 days on the alleged date of occurrence and so, he happens to be a juvenile in the eye of law. A certificate issued by the Block Development Officer-cum-Returning Officer has been annexed to disclose that appellant has got alias name as Vivek Kumar @ Pappu Singh and so submitted that the appellant be declared juvenile. 5. Learned APP opposed the prayer and submitted that the certificate granted by the Block Development Officer-cum-Returning Officer, Raniganj is not legally entertainable as the same has been procured after filing of the appeal. 5. Learned APP opposed the prayer and submitted that the certificate granted by the Block Development Officer-cum-Returning Officer, Raniganj is not legally entertainable as the same has been procured after filing of the appeal. Furthermore, it has been submitted that the aforesaid eventuality is found duly ignored at the end of appellant himself and for that, learned APP submitted that neither in the bail petition filed at an initial stage nor in Vakalatnama nay in his statement recorded under Section 313 CrPC and lastly in the memorandum of appeal, he has shown his alias name as Pappu Singh @ Vivek Kumar and so, prima facie, appellant could not be considered to be juvenile on the basis of the matriculation certificate which does not connect the appellant. That being so, prayer is fit to be rejected. 6. Initially under Juvenile Justice (Care and Protection of Children) Act, 1986 the age of delinquent in contravention of law has been properly identified with regard to a boy who has not attained the age of 16 years and a girl who has not attained the age of 18 years according to Section 2 (H) of the said Act. 7. Subsequently thereof, the Juvenile Justice (Care and Protection of Children) Act, 2000 replaced 1986 Act whereunder Section 2 (L) replaced the earlier criterion divulging a juvenile who is alleged to have committed an offence and has not completed 18 years of age as on the date of commission of such offence. In due course of time, an amendment has been introduced apart from others, by way of Section-7A of the Act whereunder, the plea of juvenility has been allowed to be availed by the delinquent “at any stage even after finalization of the proceeding”. 8. The aforesaid privilege has been retained under Juvenile Justice (Care and Protection of Children) Act, 2015 under Section 9(2) proviso. 9. That being so, so far stage is concerned, appellant is found legally entitled to raise the plea and further, such plea is to be adjudicatable even during pendency of instant appeal. 10. However, only an embargo while entertaining such plea is to have a prima facie, material that on the alleged date of occurrence the juvenile in conflict of law should have been less than 18 years and the same is found duly explained by the Apex Court in Abdul Razzaq Vs. 10. However, only an embargo while entertaining such plea is to have a prima facie, material that on the alleged date of occurrence the juvenile in conflict of law should have been less than 18 years and the same is found duly explained by the Apex Court in Abdul Razzaq Vs. State of Uttar Pradesh reported in (2015) 15 SCC 637 as well as in Mohd. Feroz Khan Vs. State of A.P as reported in (2015) 16 SCC 186 whereunder at para-17 and 18, it has been held as follows:— “ 17. Indeed, even the learned counsel appearing for the respondent could not dispute the legal position arising in the case in the petitioner’s favour on the basis of law laid down in Hari Ram[ (2009) 13 SCC 211 ] in the context of the facts alleged in the writ petition which remained uncontroverted on material issues. 18. In our considered opinion, the facts of the case in hand and the one involved in Hari Ram[ (2009) 13 SCC 211 ] are more or less similar. So far as the facts of Hari Ram case are concerned, we find that the offence was committed on 30.11.1998 and the accused therein was found between the age group of 16 to 17 years i.e. below 18 years. On these facts, this Court examined the issue in the light of the proviso and Explanation appended to Section 20 of the Juvenile Justice Act, 2000 by Amendment Act 33 of 2006 and laid down the following principles of law for deciding the issue of juvenility in every case. 11. Now coming to the facts of the case, it is evident that the matriculation certificate having been annexed with the I.A. petition is found completely segregated with the plea of the appellant in the background of the fact that it does not suggest alias name. From the lower court record, it is evident that appellant, Pappu Singh did not show his identity with alias name as Pappu Singh @ Vivek Kumar and in the aforesaid background, the certificate having been granted by the BDO (under what provision of law, the learned counsel failed to disclose) would not be of any use. 12. That being so, the authenticity of the certificate relating to appellant, Pappu Singh became doubtful, suspicious whereupon could not be relied. 13. In Parag Bhati (Juvenile) through Legal Guardian-mother-Rajni Bhati Vs. 12. That being so, the authenticity of the certificate relating to appellant, Pappu Singh became doubtful, suspicious whereupon could not be relied. 13. In Parag Bhati (Juvenile) through Legal Guardian-mother-Rajni Bhati Vs. State of Uttar Pradesh and Anr. as reported in (2016) 12 SCC 744 , it has been held that where the documentary evidence happens to be doubtful, suspicious, then in that circumstance, the enquiry should be allowed to determine the age of the accused whenever plea of juvenility has been raised. For better appreciation, paragraph-36 is quoted below:— “36. It is settled position of law that if the matriculation or equivalent certificates are available and there is no other material to prove the correctness of date of birth, the date of birth mentioned in the matriculation certificate has to be treated as a conclusive proof of the date of birth of the accused. However, if there is any doubt or a contradictory stand is being taken by the accused which raises a doubt on the correctness of the date of birth then as laid down by this Court in Abuzar Hossain [ (2012) 10 SCC 489 ], an enquiry for determination of the age or the accused is permissible which has been done in the present case”. 14. Because of the fact that plea of juvenility has been raised on behalf of appellant, Pappu Singh, then in that event, the matter has to be properly thrashed out in order to properly redress the grievance having raised at his end whereupon Additional Sessions Judge-3rd, Aurangabad is directed to conduct an enquiry and transmit the same with his finding. The aforesaid exercise must be completed within two months from the date of receipt/production of this order. 15. Office to comply and procure the full text and list accordingly.