HON’BLE SRI JUSTICE V. ESWARAIAH And HON’BLE SRI JUSTICE V. SURI APPARAO Crl.A.No. 192 of 2008 and W.P. No.19910 of 2008 DATED: 07.03.2011 Crl.A.No. 192 of 2008 Between: Manda Raju ..Appellant/A3 And The State of A.P. .. Respondent W.P. No.19910 of 2008 Between: Manda Bhagyamma ..Petitioner And The Government Central Prison, Cherlapalli .. Respondents COMMON JUDGMENT:- (Per Hon’ble Sri Justice V.Eswaraiah) Inasmuch as these two matters are inter-related, they are taken up together for disposal by this common judgment. Crl.A.No.192 of 2008 is preferred against the judgment dated 20.09.2007 delivered in S.C.No.574 of 2004 on the file of the Additional Metropolitan Sessions Judge-cum-III Additional District & Sessions Judge (FTC) whereby A1, A2 and the appellant-A3 were found guilty of the offences punishable under Sections 302, 394, 120-B and 201 read with 34 IPC, and accordingly convicted and sentenced to suffer imprisonment for life for the offence punishable under Section 302 IPC. They are further sentenced to suffer rigorous imprisonment for a period of five years and pay fine of Rs.1,000/- each, in default, to suffer simple imprisonment for three months for the offence punishable under Section 394 IPC, and also sentenced to suffer simple imprisonment for two years each for the offence punishable under Section 201 IPC and further sentenced to suffer rigorous imprisonment for two years each for the offence punishable under Section 120-B, and directed that all the sentences should run concurrently. Challenging this judgment, A3 has preferred the present Criminal Appeal. The appellant also filed an application in Crl.A.M.P.No.2342 of 2010 in Crl.A.No. 192 of 2008 stating that his date of birth is 04.03.1987 and his age is only 17 years as on the date of commission of the offence i.e. on 05.02.2004, as such, he is a juvenile within the provision of Juvenile Justice (Care Protection of Children) Act, 2000 (for short “the Act”), and therefore, he is entitled to the benefit extended under the provisions of the Act. Initially, the mother of the appellant filed the present writ petition in W.P.No.19910 of 2008 seeking a direction to the 1st respondent-Government to transfer the appellant to Borstal School as he was a juvenile and should not be confined to Central Prison. In fact, this request was rejected by the Government vide its orders issued in G.O.Ms.No.267, Home (Prisons.B) Department, dated 12.11.2008. Actually, the learned counsel for the petitioner in W.P. No.19910 of 2010 would like to put forth his contentions for transferring the appellant to Borstal School, but as a counter affidavit is filed in the writ petition with regard to the age of the convict, it is submitted that the enquiry conducted in the writ petition may be treated as counter in Crl.M.P.No.2342 of 2010. In the counter affidavit filed in the writ petition, the Government stated that the age of the convict as revealed in the enquiry as on the date of conviction i.e. 20.09.2007 was 20 years six months and 16 days, and the date of birth of the convict is 04.03.1987. Thus, the contention of the petitioner that the date of birth of the convict i.e. 04.03.1987 is not in dispute. If that be so, it is not in dispute that the offence was committed on 05.02.2004, and his age as on the date of commission of the offence, is 16 years 11 months and 1 day. Therefore, it is stated that the appellant is a juvenile, as he is below 18 years, under Section 2(k) of the Act. The juvenile, who has not completed his age of 18 years, is present before this Court. Section 6(2) of the Act, envisages that the powers conferred on the Board by or under this Act may also be exercised by the High Court and the Court of Session, when the proceedings comes before them in appeal, revision or otherwise. The learned counsel for the petitioner has submitted that as the appellant was already tried and convicted he is not challenging the conviction, but only submits that as the appellant being the juvenile, he may be directed to be released on probation of good conduct and placed under the care of his mother for his well-being for any period not exceeding three years as contemplated under Section 15(e & f) of the Act. In support of his contentions, he also relied on a judgment rendered by the Supreme Court in Bhola Bhagat Vs. State of Bihar[1]. The relevant portion of the above referred judgment is extracted herein under: “In the High Court also an argument that Chandra Sen Prasad, Mansen Prasad and Bhola Bhagat were children as defined in the Bihar Children Act, 1970 on the date of the occurrence and their trial along with the adult accused by the criminal court was not in accordance with law, was raised but was rejected inter alia with the following observations: “Since, the alleged occurrence had taken place in September, 1978 and the statements of the appellants had been recorded in February and March, 1983, it was contended that even by the estimate of the age of the appellants made by the court, all the three appellants were below 18 years of age on the date of occurrence. It appears that except for the age given by the appellants and the estimate of the court at the time of their examination under Section 313 Cr.P.C., there was no other material in support of the appellants’ claim that they were below 18 years of age” In coming to the above conclusion, the High Court relied upon a judgment of this Court in the case of State of Haryana v. Balwant Singh[2] wherein it has been observed that if the plea that the accused was a child had not been raised before the committal court as well as before the trial Court, the High Court could not merely on the basis of the age recorded in the statement under Section 313 Cr.PC. conclude that the respondent was a “child” within the meaning of the definition of the expression under the Act on the date of the occurrence, in the absence of any other material to support that conclusion. The correctness of the estimate of age as given by the trial Court was neither doubted nor questioned by the State either in the High Court or in this Court. The parties have, therefore, accepted the correctness of the estimate of age of the three appellants as given by the trial Court. Therefore, these three appellants should not be denied the benefit of the provisions of a socially progressive statute. In our considered opinion, since the plea had been raised in the High Court and because the correctness of the estimate of their age has not been assailed, it would be fair to assume that on the date of the offence, each one of the appellants squarely fell within the definition of the expression “child”. We are under these circumstances reluctant to ignore and overlook the beneficial provisions of the Acts on the technical ground that there is no other supporting material to support the estimate of ages of the appellants as given by the trial Court, though the correctness of that estimate has not been put in issue before any forum. Following the course adopted in Gopinath Ghosh, Bhoop Ram and Pradeep Kumar cases while sustaining the conviction of the appellants under all the charges we quash the sentences awarded to them.” As the parties have accepted their correctness of the date of birth of the petitioner as 04.03.1987, and admittedly the juvenile as on the date of the commission of offence i.e. 05.02.2004 is less than 18 years and as the Act is a judicial legislation as held by the Supreme Court in the above extracted portion, and in view of the submission of the learned counsel for the petitioner that the conviction may be sustained and only the sentence awarded to the appellant may be quashed, and from the date of the judgment i.e. 20.09.2007 the appellant, who is in Central Prison, Cherlapalli has already suffered more than three years of imprisonment, we are of the considered opinion that he is entitled to be released after a period of three years and kept under the protection of his mother. Having regard to the fact that the appellant, being a juvenile offender, has already suffered more than three years of rigorous imprisonment, he is entitled to be released from Central Prison, Cherlapalli in accordance with the provision of Section 15 of the Act. Accordingly, we direct that the appellant shall be released from the Centrla Prison, Cherlapalli forthwith if he is not required in any other case. Hence, Crl.A.No.192 of 2008 is partly allowed. In view of the judgment delivered in Crl.A.No.192 of 2008, no orders are required to be passed in W.P. No. 19910 of 2008, and accordingly, the same is dismissed. No order as to costs. ________________ V. ESWARAIAH, J 7th March, 2011 __________________ V. SURI APPARAO, J bcj [1] (1997) 8 Supreme Court Cases 720 [2] 1993 Supp(1) SCC 409