Crl.A. 65/2005 BEFORE THE HON’BLE MR JUSTICE AMITAVA ROY. THE HON’BLE MR JUSTICE H. BARUAH. In challenge is the judgment and order dated 27-08-2004 passed by the learned Se ssions Judge, Bongaigaon in Sessions Case No. 54(J) of 2003, whereby and whereun der appellant Minara Khatun was convicted under Section 302 IPC and sentenced to undergo imprisonment for life and to pay fine of Rs. 1000/- in default to suffe r rigorous imprisonment for another 6(six) months. 2. Unnatural death case (for short UD Case) No. 11 of 2001 was regi stered on 28-12-2001 at Jogighopa Police Station on filing of an information in writing by one Md. Muhammad Ali, S/o. Late Ajgar Ali of Bharalukundi, P.S- Jogig hopa, wherein it was alleged that on the night of 27-12-2001 around 8 pm on his return home he found his only son Amir Hussain aged 4(four) years lying dead in his residence. He also stated in the said information that on 27-12-2001 he left for his work place at 7 a.m. He lodged the information with the police to make thorough investigation about the cause of death of his only son. Police visited the place of occurrence (for short P.O) and conducted inquest on the dead body o f Amir Hussain. Inquest was conducted by Sri Lakheswar Pathak (PW-8), ASI of Pol ice. Post mortem examination on the dead body was conducted by Dr. Shyamalendu D as (PW-9). During post mortem examination having discovered finger marks on the left side of the neck obliquely downward and outward and one below the other and the fracture of trachea, doctor opined that death was due to asphyxia as a resu lt of manual compression of the neck, which was ante mortem and homicidal in nat ure. On the basis of the opinion so recorded by Dr. Shyamalendu Das (PW-9), Sri Siddheswar Haldar, ASI of police of Jogighopa Police Station lodged an FIR (Ext. 2) with the Officer-in-Charge of Jogighopa Police Station. Jogighopa Police Sta tion Case No. 21 of 2002 was registered accordingly under Section 302 IPC. 3. The case having been duly investigated laid a charge sheet under Section 302 IPC against the appellant. The case was tried by the Sessions Judge , Bongaigaon under Section 302 IPC and during trial as many as nine witnesses we re examined including the doctor and the Investigating Officer. Appellant was ex amined under Section 313 Cr. P.C. She pleaded her innocence and offered no evide nce. The trial court taking note of the facts and circumstances of the case and evidence on record both oral and documentary recorded conviction under Section 3 02 IPC and sentenced as indicated above. 4. We have heard Mr. J. Ahmed, learned counsel for the appellant as well as Mr. Z. Kamar, learned Public Prosecutor assisted by Mr. D. Das, learned Addl. P.P for the respondent, the State of Assam. 5. This appeal came to be listed before a Division Bench of this co urt on 1-3-2011 and the bench taking note of the age of the appellant recorded o n 10-8-2004 as 21 years and the commission of the offence on 27-12-2001 directed the Superintendent of District Jail, Abhayapuri to produce the appellant befor e a Medical Board to be constituted by the Superintendent of Gauhati Medical Col lege and Hospital (for short GMCH) for determination of her age in terms of Sect ion 7(A) of the Juvenile Justice (Care and Protection of Children) Act, 2000, he reinafter referred to as the Act, 2000 and to submit a report to this court on o r before 28-3-2011 with further direction to the State of Assam to bear the expe nses for carrying out the test. The appellant having been produced before the Me dical Board so constituted by the Superintendent of GMCH on 16-3-2011 at 4.15 pm , the board examined her and submitted a medical report with the Registry of thi s Court on 25-3-2011. On the basis of the physical examination and radiological investigations, the Board opined that Minara Khatun, the appellant was above 25 years on the date of her examination i.e. on 16-3-2011. It appears from the orde r passed by the Division Bench of this court that the question of juvenility of the appellant was raised on the date i.e. on 1-3-2011 for the first time. 6. From the meticulous scrutiny of the trial courts records it appe ars to us that the question of juvenility of the appellant was never raised at a ny point of time before the trial court. Appellant being convicted and sentenced is serving out the sentence till date. 7. Before taking the issue of juvenility of the appellant as raised /pleaded it would be appropriate for us to see whether there is enough room to i nterfere with the judgment and order rendered by the trial court and impugned in this appeal and for that a meticulous scrutiny of the evidence on record both o ral and documentary seemed appropriate. PW-1 is Md. Nur Islam. He deposed that Amir Hussain the deceased was the son of Mahammad Ali (PW-2) and Mustt. Minara Khatun, the appellant is t he second wife of Mahammad Ali. The deceased at the time of death was about 4 ye ars. He died on 27-12-2001 in his house. On receipt of the information about the death of Amir Hussain, he had been to the house of Mahammad Ali, the father of the deceased and found Amir Hussain lying dead on the floor of their house. On t he following day police visited the house of Mahammad Ali and held inquest on th e dead body of Amir Hussain in his presence and some other persons and prepared inquest report, Ext. 1, wherein he put his signature, Ext.1/1. In his cross-ex amination he stated that Mahammad Ali had two children from his first wife and a t the material point of time, appellant was residing with Mahammad Ali. 8. PW-2, Mahammad Ali, the father of the deceased in his evidence s tated that appellant is his second wife. His first wife died and from her side h e had a boy and a daughter. He also stated that after the death of his first wif e he married the appellant. Amir Hussain died on 27-12-2001 and at the time of d eath he was 4 years old. This witness also stated that on 27-12-2001 he came hom e from his work place at about 5 pm and found Amir Hussain lying dead. On being asked his second wife, the appellant herein about the cause of death of Amir Hus sain, she disclosed that she caused his death by pressing against his neck. On t he following day he lodged an FIR with police. Police visited his place and held inquest on the dead body. Thereafter post mortem examination was conducted by P W-9. 9. PW-3 is Abdul Mazid. He stated that Minara Khatun, the appellant is his sister-in-law and the deceased Amir Hussain was his nephew and was the s on of the first wife of PW-2. On the date of occurrence at about 6 pm while he w as returning home he saw a gathering at Mahammad Ali’s residence. He went there and found Amir Hussain, the deceased till alive. Per request of the people, who assembled there, he called in doctor Mukut. Doctor came and declared the boy to be dead. He also stated that the appellant Minara Khatun confessed in front of t he people that she killed Amir by pressing against his neck. While cross-examine d, he denied the suggestion put to him that Minara did not confess that she kill ed Amir Hussain by pressing against his neck. 10. PW-4, Abu Sama Sheikh also stated that he heard the news of kill ing of Amir Hussain by the appellant by pressing against his neck. This witness also stated that appellant is the second wife of Mahammad Ali (PW-2) and Amir Hu ssain, the deceased was Mahammad Ali’s son from his first wife. In his cross exa mination this witness stated that the appellant confessed before him that she ki lled Amir Hussain by pressing against his neck. 11. Pw-5 is Siddheswar Haldar, ASI of police. He stated that on 16-3 -2002 the Officer-in-charge of Jogighopa Police Station handed over the case dia ry of UD Case No. 11 of 2001 for completion of investigation. He collected the p ost mortem report and discussed the case with the Officer-in-Charge and the Circ le Officer. He was directed to file an FIR after discussion and accordingly he l odged the FIR, Ext.2 with the Officer-in-Charge of Jogighopa Police Station. In his cross examination he stated that the FIR, Ext. 2 was filed on the basis of t he post mortem report. 12. PW-6 is Pankaj Kalita, a Sub Inspector of Police and he appears to be the Investigating Officer of the case. He stated that UD Case No. 11 of 20 01 was registered on the basis of an FIR lodged by Mahammad Ali, PW-2 and the sa me was investigated by Sri Lakheswar Pathak (PW-8) and on his transfer Sri Siddh eswar Haldar (PW-5) took up the investigation of the UD Case. Sri Siddheswar Hal dar during investigation collected post mortem report of the deceased Amir Hussa in and on the basis of the post mortem report he lodged the FIR, Ext. 2 with the Officer-in-Charge of Gogighopa police station and basing on it, Jogighopa polic e station case No. 21 of 2002 was registered under section 302 IPC against Minar a Khatun, the appellant. He also stated that during his investigation he recorde d statement of the witnesses and arrested the appellant. On his transfer he hand ed over the Case Diary to his successor, Jiban Kalita, Sub Inspector of Police. 13. PW-7 is S.I, Sri Kuladhar Talukdar. He deposed before the trial court that after perusal of the case diary found that investigation had already been completed and on the basis of the materials collected by the former Investi gating Officer having found prima facie case against the appellant under Section 302 laid charge sheet, Ext. 3, wherein Ext. 3(1) is stated to be his signature. 14. PW-8 is ASI Sri Lakheswar Pathak. He stated in his evidence that on 27-12-2001 he was attached to Jogighopa police station and complaint having been lodged by Mahammad Ali, PW-2 in regard to death of his son, Amir Hussain, h e was directed by the Officer-in-Charge of the police station to proceed to the place of occurrence and conduct inquest on the dead body. He stated that he held the inquest in presence of witnesses and prepared inquest report, Ext.1. He als o stated that he recorded the statement of Mahammad Ali, PW-2 and another namely Manahar Ali. Dead body of Amir Hussain was sent for post mortem examination to Goalpara Civil Hospital. He also stated that he prepared a sketch map and handed over the case diary to the Officer-in-Charge thereafter. 15. PW-9, Dr. Shyamalendu Das stated that on 28-12-2001 he con ducted post mortem examination on the dead body of Amir Hussain, a boy of 4 year s old identified by Constable No. 224, Golongbo Basumatory, Monnaf Ali and Abdul Majid Ali. During post mortem examination, he discovered several finger marks o ver the neck obliquely downward and outward and one below the other. On dissecti on of the neck, there found extravasation of blood into the subcutaneous tissues under the finger marks and fracture of trachea. Doctor taking into consideratio n of all these above opined that death was caused due to asphyxia as a result of manual compression of neck, which was ante mortem and homicidal in nature. 16. From the evidence of Dr. Shyamalendu Das, PW-9 it would appear t o us that deceased Amir Hussain died as a result of Asphyxia due to manual compr ession of his neck, which was ante mortem and homicidal in nature. Evidence of P W-2, PW-3 and PW-4 speak of extra judicial confession of the appellant. They hav e unequivocally stated that Minara Khatun confessed before them that she had kil led Amir Hussain by pressing against his neck. The learned trial Judge also reli ed on the extra judicial confession made by the appellant before PW-2, PW-3 and PW-4. On careful scrutiny of their evidence it would appear to us that their te stimony are reliable and trust worthy and nothing elicited in their cross-examin ation favourable to the appellant. The extra judicial confession also received s upport from the facts and circumstances of the case and the evidence on record. Appellant is the second wife of the PW-2 and on the date of occurrence deceased and the accused were in their residence, while PW-2 remained away. While the app ellant was in their residence along with the deceased Amir Hussain, Amir Hussain died, which speaks for a circumstance against the appellant. As per evidence of the doctor, PW-9, the death was caused by manual compression of the neck. Appel lant confessed before PW-2, PW-3 and PW-4 that it was she who killed Amir Hussai n by pressing against his neck. Therefore, it cannot be said that deceased Amir Hussain did not die on account of compression of his neck, which resulted asphyx ia. Though there is no ocular evidence appearing in the face of the record, the extra judicial confession made before PW-2, PW-3 and PW-4 by the appellant makes it believable in combination of the evidence of PW-9 that the appellant caused the death of Amir Hussain. 17. The learned Trial Judge taking note of facts and circumstances o f the case, evidence on record, extra judicial confession of the appellant made before the PW-2, PW-3 and PW-4 in particular and the evidence of the doctor, PW- 9 came to a finding that it was the appellant and appellant alone who caused the death of Amir Hussain, the deceased by manual compression of his neck. The tria l court accordingly recorded conviction of the appellant under Section 302 IPC a nd sentenced as indicated above. 18. On our meticulous scrutiny of the evidence on record, we find th at evidence on record are not liable to be discarded, it being not saddled with any material contradiction, availability of which would have sufficient for reje ction. We have also seen that the appellant made extra judicial confession befor e PW2, PW3 and PW4, that she killed Amir Hussain by pressing against his neck. E xtra judicial confession so made before the PW-2, PW-3 and PW-4 appear to be not tainted, shaky so as to render it unacceptable. On the date of occurrence, PW-2 , Mahammad Ali was away from home. Amir Hussain and appellant were present and A mir was found dead by PW-2. PW-2 on his arrival and finding Amir dead on being a sked the reason/cause of death of Amir, appellant disclosed that she killed Amir by pressing against his neck. Thus, stayal of appellant and Amir on the day at their home in our considered view creates a circumstance indicating the complici ty of the appellant. All the facts and circumstances and evidence on record if c onjointly read, give an irresistible conclusion that appellant is alone responsi ble for killing Amir Hussain. We are, therefore, unable to draw a different conc lusion other than the conclusion arrived at by the trial Judge. We, therefore, f ind no illegality in convicting the appellant under Section 302 IPC. In our cons idered view appellant is rightly convicted. 19. Plea of juvenility of the appellant having been raised before a Division Bench of this Court in view of the age of the appellant stated at the t ime of recording her statement under Section 313 Cr. P.C and the date of occurre nce, a Medical Board was constituted by the Superintendent of GMCH for determina tion of the age of the appellant. The appellant being produced before the Medic al Board it examined her and on the basis of physical examination and radiologic al investigations the Board opined that appellant was above 25 years of age on t he date of examination i.e. 16-3-2011. In that calculation on the date of commis sion of offence appellant was 15 years and above and a juvenile per Section 2(k) of the Act, 2000. 20. We have already indicated herein before that before the trial co urt, the juvenility of the appellant was not pleaded. The trial court also on it s own motion did not take the pain to get her examined by a Medical Board to asc ertain her age in view of her statement recorded on 10-8-2004. 21. A juvenile in conflict with law is required to be tried by a Juv enile Justice Board constituted under Section 4 of the Act, 2000. Unfortunately, the plea of juvenility having not been taken before the trial court, the same b eing raised before the Division Bench of this court in appeal, the issue cropped up before us whether the appellant can be released in view of her under going i mprisonment for 6(six) years at least in jail. 22. Section 7(A) of the Act, 2000 provides procedure to be followed when claim of juvenility is raised before any court. Sub Section 2 of Section 7( A) provides that if the court finds a person to be juvenile on the date of commi ssion of the offence under Sub Section 1, it shall forward the juvenile to the B oard for passing appropriate order, and the sentence, if any, passed by a Court shall be deemed to have no effect. That the appellant was a juvenile on the date of commission of t he offence is ascertainable from the medical report submitted by Medical Board o n the direction of this court. Therefore, in view of the provisions of Section 7 (A) the sentence awarded by the trial court would be of no consequence against t he appellant. 23. Section 64 of the Act, 2000 provides procedure to be adopted whi le a juvenile in conflict with law is under going sentence at the commencement o f the Act, 2000. It provides that the State Government shall direct that a juven ile in conflict with law, who is under going any sentence of imprisonment at the commencement of this Act shall in lieu of under going such sentence be sent to a special home or be kept in fit institution in such manner as the State Governm ent thinks fit for the reminder of the period of the sentence and the provisio ns of this Act shall apply to the juvenile as if he had been ordered by the Boa rd to be sent to such special home or institution or as the case may be, ordered to be kept under protective care under sub section 2 of Section 16 of this Act. 24. Section 15 of the Act amongst other provides for keeping of the juvenile in special home for a period of three years. The appellant having serve d out 6(six) years at least of imprisonment till date it would definitely offend the provisions of Section 15 of the Act. Rule 98 of the Act also provides the p rocedure to be adopted in disposed of cases of juvenile in conflict with law. It says that the State Government or as the case may be the Board may, either suo muto or on an application made for the purpose, review the case of a person or a juvenile in conflict with law, determine his juvenility in terms of the provisi ons contained in the Act and the Rule 12 of the Rules and pass an appropriate or der in the interest of the juvenile in conflict with law under Section 64 of the Act, for the immediate release whose period of detention or imprisonment has ex ceeded the maximum period provided in section 15 of the said Act. 25. The appellant herein being appeared to be a juvenile on the date of commission of the offence per report of the Medical Board, the imprisonment having been awarded for life and 6(six) years already undergone in the meantime, conviction and sentence awarded to the appellant would, therefore, offend the p rovisions of Section 15 of the Act. 26. In the case of Mohan Mali and Another Vrs. State of Madhya Prade sh reported in (2010) 6 SCC 669, the Apex Court in a similar situation as found in this instant appeal taking the provisions of Sections 7A,15,20,64 and Rule 98 of the Act held that appellant Dhanna Lal having been convicted for life for co mmission of an offence under Section 302 IPC and 9 years already under gone, in view of the maximum sentence of three years provided in Section 15 of the Act re leased the appellant forthwith. This instant appeal being stood at the same foot ing, we are of the considered view that the same yardstick is also required to b e applied in respect of the appellant, Minara Khatun. 27. In the result, the appeal stands allowed. The impugned judgment and order, dated 27-08-2004 is set aside and quashed. Appellant, Minara Khatun b e released forthwith. 28. Send down the Lower Court Records.