Page 1 IN THE GAUHATI HIGH COURT (THE HIGH COURT OF ASSAM; NAGALAND; MEGHALAYA; MANIPUR; TRIPURA; MIZOAM AND ARUNACHAL PRADESH) CRIMINAL APPEAL 75/2003 Sri [ENTITY], Son of Late Soneswar Das, Village - Bangalgaon, P.S. Baihata Chariali, Kamrup, Assam. - Appellant - Versus - The [ENTITY] - Respondent BEFORE THE HON'BLE MR. JUSTICE I A ANSARI Advocates present: Amicus curiae : Mr. [ENTITY], For the respondent : Mr. [ENTITY], Addl. P.P. Assam Date of hearing and judgment : 20.07.2012 JUDGMENT & ORDER (ORAL)
This appeal has been preferred against the judgment and order, dated 24.01.2003, passed, in [CASE NUMBER], by the learned Sessions Judge, Kamrup, Guwahati, convicting the accused-appellant, under [SECTION] [ACT], and sentencing him to suffer rigorous imprisonment for 3 (three) years and pay fine of Rs. 5,000/- and, in default of payment of fine, suffer rigorous imprisonment for another period of 2 (two) months.
2. The case of the prosecution may, in brief, be described thus:
On 23.07.2000, at about 3-30/4-00 p.m., while [ENTITY] @ [CASE NUMBER] Page 2 [ENTITY] (PW2) was returning home from the direction of his paddy field, accused HD, on the instigation of accused [ENTITY], [ENTITY] and [ENTITY], gave blows with [ENTITY] aiming at [ENTITY]' neck; but, as [ENTITY] tried to save himself by offering resistance, the blows fell on his hands and he sustained injuries and, having sustained injuries on his hands, he fell unconscious. One [ENTITY] (PW3), who was proceeding towards his paddy field carrying seedlings, saw the occurrence and, putting the seedlings on the ground, he rushed to the place of occurrence, he tied pieces of cloth all around the injuries, which [ENTITY] had sustained, and carried him ([ENTITY]) to his ([ENTITY]'s) house and, on arriving there, [ENTITY] (PW3) reported the occurrence to [ENTITY]'s father, [ENTITY] (PW1). Thereafter, [ENTITY] was taken from his house to local hospital and, therefrom, to Baihata Chariali Police Station and, then, he was sent by police to the Gauhati Medical College & Hospital, at Guwahati, and he was treated there. On a written Ejahar being lodged, in this regard, by [ENTITY]'s father, [ENTITY] (PW1), Baihata Police Station Case No. 90/2000, under [SECTION] [ACT], was registered against the four accused persons aforementioned and, on completion of investigation, police laid charge-sheet accordingly against all the four accused persons.
3. At the trial, when charges, under [SECTION] and [SECTION] read with [SECTION], were framed, all the four accused persons pleaded not guilty thereto.
4. In support of their case, prosecution examined altogether 5 (five) witnesses including the doctor and the Investigating Officer. [CASE NUMBER] Page 3 The accused persons were, then, examined under [SECTION] [ACT] and, in their examinations aforementioned, the accused aforementioned denied that they had committed the offences, which were alleged to have committed by him.
5. Finding accused HD guilty of the offence under [SECTION] [ACT], the learned trial Court convicted him accordingly and passed sentence against him as mentioned above. So far as the remaining accused persons were concerned, the learned trial Court came to the conclusion that the charges, framed against these accused, had not been brought home against them and, therefore, acquitted them accordingly. As against the acquittal of the three accused persons, namely, [ENTITY], [ENTITY] and [ENTITY], neither any appeal has been preferred by the State nor has any revision been filed by the informant or the injured. Aggrieved by his conviction and the sentence, passed against him, this appeal has been preferred by HD, i.e., the convicted person.
6. I have heard Mr. [ENTITY], learned amicus curiae, and Mr. [ENTITY], learned Additional Public Prosecutor, Assam.
7. While considering the present appeal, what may be noted, at the very outset, is that PW2, who is the injured, has deposed that, on the day of the occurrence, i.e., 23.07.2000, at about 3-30/4-00 p.m., while he was returning from his paddy field, he found accused [ENTITY], [ENTITY] and [ENTITY] sitting on the culvert on the road and, when he reached the culvert, someone uttered, "Tai kat jabi", meaning thereby, "where will you go ?" and, then, somebody said "[ENTITY], tak shesh kari de", meaning thereby, "[ENTITY], finish him" and, then, suddenly, [ENTITY] (HD) appeared behind him (PW2) and gave a blow with a [ENTITY] aiming at PW2's [CASE NUMBER] Page 4 neck and, when PW2 tried to resist the blow by his left hand, the blow fell on his left hand causing injuries on his left hand. It is in the evidence of PW2 that accused HD, then, gave another blow, which, on the resistance offered by PW2 by raising his right hand, fell on his right hand and he (PW2) sustained injuries on his right hand, too, and, thereafter, he fell on the ground and lost his senses and, when he regained his senses, he found himself lying in the hospital and he came to learn that it was [ENTITY] (PW3), who had shifted him from the place of occurrence.
8. Broadly in tune with the evidence of PW2, PW3 has deposed that on the day of the occurrence, at about 3-30/4-00 p.m., when he was going to his paddy field, he saw accused [ENTITY] (HD) and few others, including [ENTITY] (PW2), on road and [ENTITY] assaulting [ENTITY] by [ENTITY] from behind. It is in the evidence of PW3 that [ENTITY] (PW2) offered resistance, he (PW2) sustained injuries on his hands and fell down on the ground, whereupon, keeping, on the ground, the seedlings, which he was carrying, he (PW3) rushed to the place of occurrence, tied pieces of cloths around the injuries sustained by [ENTITY] and, then, carried [ENTITY] to his house and from there to local hospital and, later on, the police sent [ENTITY] to Gauhati Medical College and Hospital, at Guwahati. It is also in the evidence of PW3 that he (PW3) reported the occurrence to [ENTITY]'s father, namely, [ENTITY] (PW1).
9. Though PW2 and PW3 were put by the defence to cross- examination at length, nothing significant could be elicited from their cross-examination to show that what they had deposed were [CASE NUMBER] Page 5 untrue or false. The evidence of PW2 and PW3 has, thus, remained unshaken and intact.
10. Closely on the heels of PW2 and PW3, PW1 has deposed that on coming to know about the fact that his son had been assaulted and injured, he came running to his house and found his son, [ENTITY], in injured condition, with blood oozing out of the injuries, and injured [ENTITY] (PW2) was taken to the local hospital and, thereafter, to Baihata Police Station and, later on, the police sent [ENTITY] (PW2) to Gauhati Medical College and Hospital, where [ENTITY] (PW2) was treated. In his evidence, PW1 has also deposed that [ENTITY] (PW3) reported to him that [ENTITY] (HD) had assaulted [ENTITY] at the instigation of the other three accused, whose names have appeared above.
11. So far as the doctor is concerned, his evidence shows that [ENTITY] (PW2) had been examined on 24.07.2000 (i.e., on the following day of the occurrence) at Gauhati Medical College and Hospital, Guwahati, and that [ENTITY] (PW2) was found to have suffered from a cut injury measuring 1cm X 1cm over his right forearm, another cut injury measuring 4cm X 6cm over the dorsal area of his right hand and another cut injury measuring 12cm X 5cm over the left arm from interior to posterior direction. It is also in the evidence of PW4 that the injuries were caused by sharp- cutting weapon.
12. From the medical evidence on record, it clearly transpires that PW2 had sustained cut injuries on both his hands and, if this fact is borne in mind, it becomes clear that the medical evidence on record fully supports and corroborates the evidence given by the injured (PW2) that he had been given blows aiming at his neck by [CASE NUMBER] Page 6 accused HD and, while trying to save himself from the first blow, he (PW2) raised his left hand and sustained injury and, on the second blow being given on him by accused HD, when he (PW2) raised his right hand to save himself, the blow fell on his right hand too and he sustained injuries on his both hands.
13. What emerges from the above discussion is that HD, according to the convincing, credible and trustworthy evidence on record, had given blows with [ENTITY], aiming at the neck of [ENTITY] (PW2) and, had the blows fallen on the neck of PW2, PW2 would have, in all probabilities, died. In such a circumstance, learned trial Court was not incorrect in coming to the conclusion that the HD was proved, beyond all reasonable doubt, to have committed the offence of attempting to commit murder punishable under [SECTION] [ACT]. Having reached this finding, could the learned trial Court have convicted HD of the offence, under [SECTION] [ACT], is, now, the question for determination by this Court ?
14. While considering the question, posed above, it is imperative to note that on the arrest of accused HD, when HD was forwarded to the Court of the Chief Judicial Magistrate seeking his remand, HD was described, in the forwarding report, as 18 years old. However, HD filed a copy of his school certificate, which showed that his (HD's) date of birth was 06.03.1986. If the said birth certificate was correct, then, on the day of the occurrence, i.e., 23.07.2000, accused HD was less than 16 years. Logically extended, it would mean that accused HD was a juvenile in conflict with law within the meaning of [SECTION] of the [ACT] (hereinafter referred to as the 'new Act').
[CASE NUMBER] Page 7
15. Coupled with the above, while accused HD was examined, under [SECTION] [ACT], on 05.12.2002, HD had mentioned his age as 19 years.
16. In the face of the materials, as indicated above, it was the duty of the learned trial Court to have held requisite enquiry to determine if the accused, who was found guilty of the offence under [SECTION] [ACT], was or was not a juvenile in conflict with law on the date of the alleged occurrence, i.e. 23.07.2000 ? The learned trial Court did not, however, make any enquiry in this regard.
17. I may, now, pause here to refer to [SECTION] of the new Act, which reads as under:
"20. Special provision in respect of pending cases. - Notwithstanding anything contained in this Act, all proceedings in respect of a juvenile pending in any Court in any area on the date on which this Act comes into force in that area, shall be continued in that Court as if this Act had not been passed and if the Court finds that the juvenile has committed an offence, it shall record such finding and instead of passing any sentence in respect of the juvenile, forward the juvenile to the Board, which shall pass orders in respect of the juvenile in respect of that juvenile in accordance with the provisions of this Act as if it had been satisfied on inquiry under this Act that a juvenile has committed the offence."
18. A close and patient reading of the provisions, embodied under [SECTION] of the new Act, shows that if a proceeding is pending in any Court on the date of coming into force of the new Act, the proceeding shall be continued as if the new Act had not been passed and if the Court finds that a juvenile had committed an offence, it shall record such a finding and, instead of passing [CASE NUMBER] Page 8 any sentence in respect of the juvenile, forward the juvenile to the Board (i.e., Juvenile Justice Board) constituted under [SECTION] of the new Act, and, then, the Board shall pass appropriate order(s) in respect of the juvenile in accordance with the provisions of the new Act as if it had not been satisfied, on enquiry, that the juvenile had committed the offence.
19. It is also extremely important to bear in mind, with regard to the above, that if an accused is found to be a juvenile in conflict with law and if the case against the juvenile was pending in the Court on the date of coming into force of the [ACT], then such a juvenile cannot be convicted by the Court and it is on the basis of the finding of guilt that the juvenile is required to be convicted by the Juvenile Justice Board. The [SECTION] of the [ACT], however, empowers the Board to review the case for adequate and special reasons to be mentioned in their order and, then, to pass appropriate order(s) in the interest of the juvenile.
20. The Explanation to [SECTION] of the new Act makes it clear that, in all cases, including trial, revision, appeal or any other criminal proceedings in respect of a juvenile in conflict with law, in any Court, the determination of juvenility of such a juvenile shall be in terms of [SECTION], even if the juvenile ceases to be a juvenile on or before the commencement of the new Act and the provisions of the new Act shall apply as if the said provisions had been in force, for all purposes and at all material times, when the alleged offence was committed.
21. It is of paramount importance to note that, according to the provisions of the [ACT], a person, if male, [CASE NUMBER] Page 9 ceased to be juvenile on completing the age of 16 years on the date of coming into force of the [ACT]. [SECTION] of the new Act has, however, brought revolutionary changes making special provisions in respect of all cases, which were pending against persons, who were not juvenile within the meaning of the term juvenile, as given in the [ACT], but they had not crossed the age of 18 years on the date of coming into force of the new Act, because, such persons, who had ceased to be juvenile under the [ACT], were, in the light of the provisions of [SECTION] of the new Act, required to be treated as if they were juvenile at the time of the commission of the offence provided that they had not exceeded the age of 18 years and remained, therefore, within the meaning of [SECTION] of the new Act, juvenile in conflict with law.
22. To put it a little differently, when a male person, older than 16 years, happens to face trial for commission of an offence, he has to be treated as a juvenile in conflict with law under the new Act, if he had not crossed the age of 18 years on the date of the commission of the offence, when the new Act came into force and, in such circumstances, the procedure, as prescribed by [SECTION] of the new Act, has to be followed, which allows the trial, as against such person, to proceed in the trial Court but by treating the person concerned as a juvenile in conflict with law within the meaning of [SECTION] of the new Act and, if the criminal Court arrives at the finding of guilt against such a person, then, instead of convicting such a person of the offence, which the person has been found guilty of, the criminal Court is required to record its finding and, then, instead of convicting and sentencing him [CASE NUMBER] Page 10 accordingly, make over such a person to the Juvenile Justice Board for passing appropriate order(s). [SECTION] also makes it clear that even in the revision or appeal, arisen against a person's conviction and sentence by a criminal Court, the convicted person can raise question of his juvenility for receiving the benefit of [SECTION], if he can show that though he had, as a male person, ceased to be juvenile by having crossed the age of 16 years, he was, nevertheless, less than 18 years, when the new act came into force.
23. What emerges from the above discussion is that, while finding of guilt, reached against the accused HD, does not suffer from any infirmity, legal or factual, his conviction and the sentence, passed against him, cannot be sustained.
24. In the light of the law, as discussed above, the references made by Mr. [ENTITY], learned amicus curiae, to the cases of [PRECEDENT], reported in [PRECEDENT], [PRECEDENT], and [PRECEDENT], is not at all misplaced.
25. In the result and for the reasons discussed above, this appeal partly succeeds. While the finding of guilt, recorded against the accused, HD, is upheld, his conviction and sentence are hereby set aside and the case is remanded to the learned trial Court for determination of the question as to whether the accused, who has been found guilty of the offence under [SECTION] [ACT], was a juvenile in conflict with law in terms of the definition thereof, as contained in [SECTION] of the new Act on the date, when the new Act came into force, and if it is found that the accused HD was a [CASE NUMBER] Page 11 juvenile in conflict with law, when the new Act came into force, then, the procedure, as prescribed in [SECTION] of the new Act, shall be adhered to.
26. In order to ensure expeditious disposal of the case, the present appellant, [ENTITY], is hereby directed to ensure that the accused, [ENTITY], appears in the learned trial Court, on 21.08.2012, so that further proceedings can take place in accordance with law.
27. With the above observations and directions, this criminal appeal stands disposed of.
28. Send back the LCR with a copy of this judgment and order.
JUDGE rk [CASE NUMBER]