IN THE HIGH COURT OF JUDICATATURE ANDHRA PRADESH AT HYDERABAD TUESDAY THE TWENTYTHIRD DAY OF NOVEMBER TWO THOUSAND AND TEN PRESENT THE HONOURABLE SRI JUSTICE V. ESWARAIAH AND THE HONOURABLE SRI JUSTICE B.N. RAO NALLA CRIMINAL APPEAL No. 432 OF 2006 Between: Mohd. Sattar … Appellant-Accused V/s. The State of Andhra Pradesh Represented by its Public Prosecutor, High Court of A.P. Hyderabad … Respondent-Complainant Counsel for the Appellant : Sri S.R. Sanku Counsel for the Respondent : Addl.Public Prosecutor The Court made the following judgment : (Judgment follows 2nd page) THE HONOURABLE SRI JUSTICE V. ESWARAIAH AND THE HONOURABLE SRI JUSTICE B.N. RAO NALLA CRIMINAL APPEAL No. 432 OF 2006 JUDGMENT : (Per the Hon’ble Sri Justice V.Eswaraiah) The appellant-accused was tried in SC.No. 136 of 2005 for the offence under section 302 of IPC on the file of the Court of Additional Metropolitan Sessions Judge, Cyberabad, Ranga Reddy district and he was convicted for the offence under section 302 of IPC and sentenced to suffer Rigorous Imprisonment for life and also to pay a fine of Rs.500/- in default to suffer simple imprisonment for two months, by judgment dated 03-2-2006. Aggrieved by the same, the sole accused filed this Criminal Appeal on various grounds. The learned counsel appearing for the appellant have given up the argument to consider the case on merits but only confines his argument that the court below ought to have sent the accused he being a juvenile to borstal school for reformation and rehabilitation, as he is a adolescent offender. The accused has not chosen the plea either at the time of committal or during the course of trial in the said case and his age was shown as 20 years in the charge sheet and the judgment. 2. Whether the appellant is a juvenile or not and a ground has been taken in the appeal stating that he is a juvenile and during the course of hearing the appeal and when the matter was listed for hearing on 17-11-2008 the learned counsel appearing for the appellant contended that the accused is a adolescent offender below 20 years as on the date of conviction and therefore he should be sent to borstal school to serve the sentence. Though such plea is not taken during the course of trial before the learned Sessions Judge, who convicted him under section 302 of IPC. In the charge sheet also the age of the appellant was mentioned as 20 years but whether he was aged 20 years as on the date of conviction is not forthcoming. Hence, the District Probation Officer, Ranga Reddy district was appointed under the provisions of Probation of Offenders Act and directed to submit a report with regard to the age and antecedents of the accused as on the date of his conviction. If the age of the appellant is not recorded in any school register his age should be ascertained from the panel of doctors and the report to be submitted before the court. Pursuant to the said order a report was sent by the District Probation Officer, Ranga Reddy district without specifying the age of the accused and without ascertaining the age by referring the accused to the panel of doctor as directed by this court on 17-11-2009. Thereafter another direction was issued on 12-6- 2009 directing the District Probation Officer, Ranga Reddy district to ascertain the age of the accused. On examination, the panel of doctors opined for the said purpose and submits a report with regard to the age of the accused as on the date of the offence. Pursuant to the said order, dated 12-6-2009, the panel of doctors i.e., Department of Forensic Medicine, Osmania Medial College, Hyderabad and Assistant Professor of Forensic Medicine, Osmania Medical College examined the accused at the requisition of the Superintendent of Central Prison, Cherlapalli and conducted Radiology examination and opined that the accused- appellant Mohammed Sattar son of Mohammed Sarwar is aged about 23 years as on the date of examination i.e., 19-3-2010 and his age is 18 years as on the date of the offence i.e., 04-4-2005. 3. The learned counsel appearing for the appellant would submit that as per the Juvenile Justice (Care and Protection of Children) Act, 2000. A child who has killed some other child also a juvenile and a person who has not completed 18 years of age as defined under section 2 (k) of the Juvenile Justice (Care and Protection of Children) Act, 2000 (for brevity ‘The Act’). It is stated that under section 15(1) of the Act, whether a juvenile has committed the offence the Courts make things so fit and direct the juvenile to be released on probation of good conduct and placed under the care of any fit institution for good behaviour and well-being of the juvenile for the period not exceeding three years. “Fit institution” means a Governmental or a registered non-governmental organization or a voluntary organization prepared to own the responsibility of a child and such organization is found fit by the competent authority. It is stated that the Government established a juvenile home as a fit institution and if a juvenile commits an offence, he shall be released on probation of good conduct and placed him under the care of any parent or guardian or any other fit person for a period not exceeding three years alone. Under section 16 under proviso 2 (1) of the Act, the period of detention so ordered shall not exceed the maximum period of imprisonment to which the juvenile have been sentenced for the offence committed. It is stated that the maximum period of sentence that can be imposed to a juvenile for sending him under the care of a fit person or any guardian or institution not exceeding three years. It is stated in the instant case that the age of the accused is 18 years as on the date of offence i.e., on 03-4-2005. If that be so, an order as required to be passed under section 15 of the Act for sending him to the fit institution for a period of not exceeding three years and under section 16 (2) of the Act, the conviction so ordered shall not exceed the maximum period to which the juvenile could have been sentenced for the offence committed. In the instant case, as the appellant being a juvenile, he should have been sent to the juvenile home, Saidabad, Hyderabad, but he was not sent. As per the judgment of the Apex Court in the case of PRATAP SINGH V/s. STATE OF JHARKHAND AND ANR [1]., the reckoning date for determination of age of juvenile offender is date of offence and not the date when he is produced in court/competent authority. There is no controversy with regard to the age of the appellant as on the date of the offence as 18 years and he has not completed 18 years of age by then, therefore, he is a juvenile within the meaning of Juvenile Justice (Care and Protection of Children) Act, 2000. The learned counsel appearing for the appellant placed reliance on the judgment of the Supreme Court in the case of BHOLA BHAGAT V/s. STATE OF BIHAR [2]., and would submit that even though such a plea has not been taken before the court below, the appellant is entitled to raise a plea that the accused is a child at the time of commission of offence and even before the appellate court. The Supreme Court in para No.8 and 18 held as hereunder: 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 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 of the CrPC, there was no other material in support of the appellants claim that they were below 18 years of age. To us it appears that the approach of the High Court in dealing with the question of age of the appellants and the denial of benefit to them of the provisions of both the Acts was not proper. Technicalities were allowed to defeat the benefits of a socially oriented legislation like the Bihar Children Act, 1982 and the Juvenile Justice Act, 1986. If the High Court had doubts about the correctness of their age as given by the appellants and also as estimated by the trial Court, it ought to have ordered an enquiry to determine their ages. It should not have brushed aside their plea without such an enquiry. Before parting with this judgment, we would like to reemphasis that when a plea is raised on behalf of an accused that he was a "child" within the meaning of the definition of the expression under the Act, it becomes obligatory for the court, in case it entertains any doubt about the age as claimed by the accused, to hold an inquiry itself for determination of the question of age of the accused or cause an enquiry to be held and seek a report regarding the same, if necessary, by asking the parties to lead evidence in that regard. Keeping in view the beneficial nature of the socially oriented legislation, it is an obligation of the court where such a plea is raised to examine that plea with care and it cannot fold its hands and without returning a positive finding regarding that plea, deny the benefit of the provisions of an accused. The court must hold an enquiry and return a finding regarding the age, one way or the other. We except the High Courts and subordinate courts to deal with such cases with more sensitivity, as otherwise the object of the Acts would be frustrated and the effort of the Legislature to reform the delinquent child and reclaim him as a useful member of the society would be frustrated. The High Courts may issue administrative directions to the subordinate courts that whenever such a plea is raised before them and they entertain any reasonable doubt about the correctness of the plea, they must as a rule, conduct an inquiry by giving opportunity to the parties to establish their respective claims and return a finding regarding the age of the concerned accused and then deal with the case in the manner provided by law. 4. In view of the aforesaid judgment, this Court ordered inquiry and pursuant to the inquiry the age is determined as 18 years as on the date of commission of offence and he has not completed the age of 18 years within the meaning of juvenile. The Supreme Court further held in para 11 as hereunder : Again, in the case of Bhoop Ram v. State of U.P. , the only question for consideration before a Bench of this Court was whether the appellant who had been convicted and sentenced along with certain adult accused should have been treated as a child within the meaning of Section 2(4) of the U.P. Children Act, 1951 and sent to the approved school for detention therein till he attained the age of 18 years instead of being sentenced to undergo imprisonment in jail. The Court after considering the material on the record opined that the appellant therein could not have completed 16 years of age on the date when the offence was committed and held that the appellant should have been dealt with under the U.P. Children Act instead of being sentenced to imprisonment when he was convicted by the Sessions Judge under various grounds. Since, the appellant had by the time the appeal was heard by the Supreme Court reached the age of more than 28 years, the court directed: Since the appellant is now aged more than 28 years of age, there is no question of the appellant now being sent to an approved school under the U.P. Children Act for being detained there. In a somewhat similar situation, this Court held in Jayendra v. State of U.P. that where an accused had been wrongly sentenced to imprisonment instead of being treated as a "child" under Section 2(4) of the U.P. Children Act and sent to an approved school and the accused had crossed the maximum age of detention in an approved school viz. 18 years, the course to be followed is to sustain the conviction but however quash the sentence imposed on the accused and direct his release forthwith. Accordingly, in this case also, we sustain the conviction of the appellant under all the charges framed against him but however quash the sentence awarded to him and direct his release forthwith. 5. As the correctness of the estimate of the age as given in the report is neither doubted nor questioned by the State, we hold that the appellant is a juvenile as on the date of commission of offence. If that be so, whether the appellant is entitled for the benefit of Juvenile Justice (Care and Protection of Children) Act, 2000. Though such a plea has not been raised before the Court below, though plea for the first time raised before this Court. The Supreme Court in para No.10 observed as hereunder: In Gopinath Ghosh v. State of West Bengal [1984] Supp. SCC 228, an argument was raised on behalf of the appellant therein for the first time in the Supreme Court that on the date of an offence the appellant was aged below 18 years and was, therefore, a 'child' within the meaning of the expression 'child' as contained in the West Bengal Children Act, 1959 and, therefore, the court had no jurisdiction to sentence him to suffer imprisonment, after holding a trial. In that case, this Court framed an issue as to what was the age of the appellant on the date of an offence for which he had been tried and convicted and remitted the issue to the learned Sessions Judge, Madia to return a finding on that question. The learned Sessions Judge after hearing both the sides certified his findings that the appellant Gopinath Ghosh was aged between 16-17 years on the date of the offence. This Court then after referring to various provisions of the Act opined that Section 24 of the Act takes away the jurisdiction of the Court to impose a sentence of imprisonment, unless the case falls under the proviso and that Section 25 of the Act forbids any trial of juvenile delinquent and that only an inquiry can be held in his case in accordance with provisions of the CrPC, for the trial of a summons case. This Court noticed that unfortunately the appellant had never questioned the jurisdiction of the Sessions Court which tried him for the offence. Nor was any such plea raised in the appeal against his conviction and sentence in the High Court. It was Tor the first time that the contention was raised before the Supreme Court. The Court then observed: In view of the underlying intendment and beneficial provisions of the Act read with Clause (f) of Article 39 of the Constitution which provides that the State shall direct its policy towards securing that children are given opportunities and facilities to develop in a healthy manner and in conditions of freedom and dignity and that childhood and youth are protected against exploitation and against moral and material abandonment, we consider it proper not to allow a technical condition that thin contention is being raised in this Court for the first time to thwart the benefit of the provisions being extended to the appellant, if he was otherwise entitled to it. (Emphasis ours) and then went on to direct: The next question is : what should be the sequel to our decision? The appellant has been in prison for some years. But neither his antecedents nor the background of his family are before us. It is difficult for us to gauge how the juvenile court would have dealt with him. Therefore, we direct that the appellant be released on bail forthwith by the learned Additional Sessions Judge, Nadia," and then proceed in accordance with law keeping in view the provisions of the Act. 6. In view of the aforesaid judgment, we sustain the conviction of the appellant for the charge under section 302 of IPC however we quash the sentence awarded to him and direct that he be released forth with. if he is not required in any other case, as he has already served the sentence from 03-2-2006 till date i.e., more than about 4 ½ years. 7. In the result, the Criminal Appeal is disposed of. ________________________ JUSTICE V. ESWARAIAH ________________________ JUSTICE B.N. RAO NALLA 23-11-2010 I s L N B : Advance Order already communicated to the Superintendent, Central Prison, Charlapalli, Hyderabad. B/o. I s L THE HONOURABLE SRI JUSTICE V. ESWARAIAH AND THE HONOURABLE SRI JUSTICE B.N. RAO NALLA CRIMINAL APPEAL No. 432 OF 2006 (Per the Hon’ble Sri Justice V. Eswaraiah) Circulation No. 42 Date:23-11-2010 Computer No. 43 Court Master : I s L Equivalent citations: 1997 (2) ALD Cri 645, 1998 (1) BLJR 628, 1998 CriLJ 390 Bench: A Anand, K Venkataswami Bhola Bhagat And Ors. vs State Of Bihar on 27/10/1997 JUDGMENT A.S. Anand, J. 1. For an occurrence which took place at about 11.30 A.M. on 29th September, 1978, in the Bazar in village Barauli, District Gopalganj, 11 accused persons were sent up to face their trial for offences under Sections 302/149/148 IPC. The First Information Report in respect of the occurrence was lodged on 29th September, 1978 at Police Station Barauli on the statement of Paras Nath Choubey (PW-6) brother of the deceased, recorded at the hospital. The learned Additional Sessions Judge vide judgment and order dated 22nd July, 1983 acquitted Mishri Bhagat, but convicted the remaining 10 accused for offences under Sections 302/149/148 IPC. Each of the 10 accused was sentenced to undergo imprisonment for life for an offence under Sections 302/149. No separate sentence was imposed on any one of the accused for an offence under Section 148 IPC. Against their conviction and sentence, all the 10 convicts filed three different set of appeals. The Division Bench of the High Court vide Judgment and order dated 24th August, 1995 acquitted Sarwa prasad (appellant No. 5 in the High Court). The conviction and sentence of the remaining 9 convicts was, however, maintained. By Special Leave 6 of the convicts have filed three separate appeals in this Court. Three convicts have not filed any appeal against their conviction and sentence. All the three appeals are being disposed of by this common judgment since they arise out of the common judgment and order of the courts below. Prabhunath Prasad has filed Criminal Appeal No. 1827 of 1996 while Bhola Bhagat is the appellant in Criminal Appeal No. 1826 of 1996, the remaining four convicts have filed Criminal Appeal No. 1828 of 1996. 2. According to the prosecution case, on the fateful day Parasnath Choubey (PW-6) along with his brother Ram Naresh Choubey (deceased) went to the shop of Anish Haider (PW-5) for purchasing some cloth. After making the purchase, when they reached near the shop of Jagat Prasad, PW-6 saw Mishri Bhagat standing in a lane near the medicine shop. He directed the remaining accused who were armed with weapons like Dab, Bhala and Farsa to assault the complainant party. While the first informant PW-6 managed to escape, the accused surrounded his brother and assaulted him, as a result of which Ram Naresh Choubey fell down on the ground. On raising an alarm a number of persons including Jita Manjhi (PW-1), Bindeshwari Prasad (PW-3), Rajendra Choubey (PW-4), Anish Haider (PW-5), Shaukat Ali (PW-8) and Damodar Choudhary arrived at the scene of occurrence. After the appellants had assaulted the deceased they fled towards the east. PW- 6 came near his brother but found him unconscious with bleeding injuries on different parts of his body. He removed him to Barauli hospital on a cart. On intimation being set from the hospital to police station Barauli, Abdul Jalil (PW-9) arrived at the hospital and recorded the statement of P.W. 6 since the injured was in an unconscious state. The injury report of Ram Naresh Choubey was prepared. On the advice of the Doctor, the deceased was removed to Gopalganj hospital. PW-9 returned to the police station and drew up a formal FIR for offences under Section 307 IPC etc. The investigation was taken in hand and site inspection carried out. Blood stained earths was seized from the place of occurrence and was subsequently sent for chemical examination. At about 10.00 P.M., the investigating officer received information that the injured had succumbed to his injuries in Gopalganj hospital. The case was thereupon converted to one under Section 302 IPC. An inquest was held at Gopalganj hospital the same day. Thereafter, the post-mortem was conducted by Dr. Lakhi Chand Prasad (PW-7). As many as 17 antimortem injuries, all cut wounds, were found on the body of the deceased. After close of the investigation the appellants were chargesheeted, tried and convicted as already notice. 3. At the trial all the witnesses except PW-1, PW-3, and PW-4 turned hostile. The Trial Court did not believe Jita Majhi PW-1, but the High Court did not agree with the opinion of the Trial Court and found him to be a reliable witness, PW-3 Bindeshwari Prasad was believed both by the Trial Court and the High Court. He made a clear deposition regarding the part played by the appellants and the manner in which the occurrence had taken place. PW-4 Rajendra Choubey, brother of the deceased, was believed by the Trial Court but the High Court did not place complete reliance upon his testimony. Even though Anish Haider (PW-5) had been declared hostile, both the Trial Court as well as the High Court scrutinised his testimony carefully and relied upon his evidence. He was named in Faradbeyan also. His evidence connects the appellants with the crime. Similarly, Parasnath Choubey (PW-6) even though had turned hostile has been believed by both the courts. No reliance, however, has been placed on the testimony of Shaukat All (PW-8) by either of the two courts. The defence of alibi pleaded by Mansen Prasad and Dr. Anil Kumar alias Tansen, appellants was not accepted after critically examining the evidence of Mahendra Prasad (DW-1) and Dr. M.M. Kolay (DW-2) by the High Court. 4. We have heard learned Counsel for the parties at length. We find that the view taken by both the courts with regard to the involvement of the appellants in the three appeals in the commission of crime of murder of Ram Naresh Choubey on the fateful day has been established beyond every reasonable doubt. Both the courts have carefully appreciated the evidence of witnesses and taken into account the medical evidence and the established enemity between the parties and then recorded an order of conviction. In our opinion the appreciation of evidence by both the courts is proper and sound. We are not persuaded to take a view different than the one taken by the courts below in so far as the involvement of the appellants in the commission of crime is concerned. Their conviction is, therefore, well merited. 5. There is, however, one other aspect of the case which now engages our attention and that pertains to appellant No. 2, Chandra