Research › Search › Judgment

Madhya Pradesh High Court · body

2017 DIGILAW 932 (MP)

Afzal v. State of M. P.

2017-08-24

ROHIT ARYA

body2017
ORDER 1. This appeal under section 374 CrPC, has been filed by the appellant against the judgment of conviction and order of sentence recorded for the offence under sections 326A and 326B IPC and sentenced to undergo ten years rigorous imprisonment in Sessions Trial No.824/2013 by VI Additional Sessions Judge, Indore, District Indore. 2. This Court vide order dated 1.2.2017 had directed the trial Court for ascertaining the age of the appellant, on an objection raised by the learned counsel for the appellant that the appellant was below 18 years of age, on the date of commission of the crime, i.e., on 10.10.2013. 3. The report has been submitted and the appellant is found to be of the age of 18 years, on the date of occurrence of the incident, therefore, he was found to be a juvenile. 4. Learned counsel for the appellant relying upon the judgments of the Hon'ble Supreme Court in the cases of Darga Ram alias Gunga v. State of Rajasthan [ AIR 2015 SC 1016 ] and Abdul Razzaq v. State of U.P. [ AIR 2015 SC 1770 ], contends that the impugned judgment since suffers from coram non-judice, the appellant could not have been tried by the regular Sessions Court, at the relevant point of time, therefore, the said judgment cannot be sustained in the eyes of law. Learned counsel also contends that the appellant since has already undergone more than three years of sentence out of ten years rigorous imprisonment awarded by the trial Court while convicting him under sections 326A and 326B IPC, therefore, he cannot be further detained in custody, in view of section 15 of the Juvenile Justice (Care and Protection of Children) Act, 2000 (For short, the Act of 2000). As the maximum sentence thereunder is of three years for a juvenile found to undergo sentence for an offence. 5. Per contra, learned Public Prosecutor contends that the appellant may not be released from custody by this Court, instead the appellant be directed to appear before the concerned Juvenile Justice Board for the purpose of enlargement on bail, pending trial by the Juvenile Justice Board. 6. Heard. 7. There is no dispute about the age of the appellant being a juvenile at the time of commission of the crime, i.e., on 10.10.2013. As such, the appellant could not be tried by the Sessions Court. 6. Heard. 7. There is no dispute about the age of the appellant being a juvenile at the time of commission of the crime, i.e., on 10.10.2013. As such, the appellant could not be tried by the Sessions Court. The conviction and sentence of ten years rigorous imprisonment awarded to the appellant, therefore, cannot be sustained in the eyes of law. As undisputedly, the appellant has undergone more than three years rigorous imprisonment, no further detention of the appellant can be ordered even by the Juvenile Justice Board, in view of section 15 read with explanation appended to section 65 of the Act of 2000. Hence, in the aforesaid facts and circumstances of the case and drawing support from the judgments of the Hon'ble Supreme Court in the cases of Darga Ram alias Gunga (supra) and Abdul Razzaq (supra), this appeal is allowed in part. 8. The impugned conviction is hereby set aside but the sentence is modified and instead thereof, the appellant is sentenced to the period already undergone by him in jail. 9. The appellant is reported to be in jail, therefore, he be set at liberty forthwith, if not required in any other criminal case. 10. With the aforesaid modification, this appeal is disposed of finally. 11. A copy of this order be sent to the learned trial Court for necessary compliance.