Cr. Appeal (S.J.) No. 100 of 1998 ----- Against the judgment and order dated 22.1.1998 and 23.1.1998, respectively passed by Sri Binoy Kumar Sinha,2nd Additional Sessions Judge, Ara, in Sessions Trial No. 14/90. ----- Umesh Singh son of Naulakh Singh, resident of village- Gausganj, P.S. Ara(Town), District-Bhojpur. …..Appellant Versus The State of Bihar ….. ... Respondent ----- For the appellant : Mr. Chittaranjan Sinha, Sr. Advocate with M/s Anirban Kundan, Sanjay Kumar Singh & Krishna Naryan Jha, Advocates For the State : Mr. Rajendranath Jha, A.P.P. ----- P R E S E N T Hon’ble Justice (Mrs.) Sheema Ali Khan ----- S. A. Khan, J. The sole appellant, Umesh Singh, has been convicted under sections 307 and 379 of the Indian Penal Code by judgment and order dated 22.1.1998 and 23.1.1998 respectively passed by Sri Binoy Kumar Sinha, IInd Additional Sessions Judge, Ara, in Sessions Trial No.14/90 and sentenced to undergo rigorous imprisonment for seven years under section 307 of the Indian Penal Code and one year under section 379 of the Indian Penal Code. Both the sentences were to run concurrently. 2. The prosecution case, in short, is that the informant was ready to leave for his home from his shop, when Umesh Singh, the appellant came to the shop of the informant and accompanied him on the bicycle. Both of them sat on a bicycle and proceeded towards the village. On the way, the appellant is said to have stopped the bicycle and demanded the key of the shop belonging to the informant. When the informant refused to handover the key, it is alleged that the appellant gave him a farsa blow on the neck. - 2 - 3. A short point has been raised on behalf of the appellant which is that it is stated that the appellant was aged 16 years and, therefore, entitled to the benefit of Juvenile Justice (Care & Protection of Children) Act, 1986 (hereinafter referred to as “Juvenile Justice Act”). The occurrence took place on 19.6.1986. The appellant filed an application on 26.6.86 stating that he is a juvenile. The court below called for a report on from the Civil Surgeon on 26.6.86.The Civil Surgeon submitted his report that the appellant was aged about 16 years. The Chief Judicial Magistrate rejected the report submitted by the Civil Surgeon by order dated 25.7.86 on the ground that his physical appearance did not disclose that the appellant was only 16 years of age. 4. Learned counsel for the appellant submits that it is a fact that the appellant did not raise this issue at the time of trial of the case and had not prayed that his case should be tried under the Juvenile Justice Act but from the judgment of the court below delivered on 22.1.1998, it appears that the appellant has been described as being about 28 years of age. That means, in fact, on the date on which the alleged occurrence took place, the appellant was about 16years of age. 5. At the time when the alleged occurrence took place, Bihar Children Act, 1982 was already in force and the Juvenile Justice Act, 1986 came in force on 2.10.1987. Section 2(d) of the Bihar Children Act defines „child‟. „Child‟ means “a boy or a girl, who has not attained the age of 16 years or 18 years respectively as the case may be”. Under the Juvenile Juistice Act, juvenile child means “a child, who has not attained the age of 16 years”. Therefore, the definition of a „child‟ in both the Acts was the same and similar. The scientific report shows that the appellant was about 16 years of age. Therefore, prima facie, the appellant‟s case regarding his age is on the border line and it cannot be definitely, said either way that the appellant was a child/juvenile. 6. I have highlighted the age of the appellant in view of the order which I am going to pass in this case. - 3 - 7. Learned counsel referring to the evidence has challenged the very manner of the occurrence, inasmuch as , it has been submitted that since there was a dispute between the appellant and the victim, the appellant has been named in this case and, in fact, he was not at all involved in the occurrence. It is further submitted that the very manner in which the occurrence took place is doubtful that is to say that the appellant and the victim both were riding on a bicycle, they stopped on the way and it is said that the appellant fetched a „Hansuli‟ and then assaulted him. It is also the prosecution case that the appellant instead of taking main road had chosen a byway with an intention to take the victim to a lonely spot. The defence case, on the other hand, is that apart from the victim with whom the appellant had a dispute, no other witness has come forward to say that the appellant was involved in the said occurrence. Learned counsel also highlights the fact that P.W.2, who is the informant of this case, heard that P.W.4, the victim, was lying on the road and on reaching the place of occurrence he found him in injured condition. Thereafter, he was taken to the house where he regained consciousness, revealed the name of the appellant as being responsible for inflicting the injuries and thereafter he became unconscious and remained unconscious for two days. It has been submitted that the entire manner in which the prosecution case has been depicted is unbelievable and it is not possible that the two persons of a business community having enmity between them would agree to travel together on a bicycle. It has further been submitted that both the appellant and the victim boys run shops. The appellant runs a sweetmeat shop, whereas, the victim boy runs a flour mill. Both are the businessmen and it is quite unusual that the appellant having separate business from the victim would be involved in such occurrence. 8. Learned counsel for the appellant has also submitted that the Doctor and the Investigating Officer have not been examined in this case which has prejudiced the appellant as he did not get an opportunity to cross-examine the - 4 - Doctor with respect to the injuries described by him and the Investigating Officer regarding the details with respect to the place of occurrence and the evidence of the witnesses. 9. Learned counsel appearing for the State has argued that the perusal of injury report indicates that there was incised wound on the neck of the victim boy (P.W.4) and the victim boy had definitely, been assaulted by someone and apart from the fact that the victim was on inimical term with the appellant, there is no reason to disbelieve the evidence of P.W.4, victim boy. 10. After considering all aspects of the matter, taking into account that at the time of occurrence the appellant was about 16 years of age, considering the fact that the occurrence took place as far back as in the year 1986, this appeal has remained pending in this court for about ten years and the finding of the court below that the appellant had a clean antecedent, I think that the purpose of justice would be served by altering the sentence awarded to the appellant as the period already undergone in custody. Accordingly, the sentence of the appellant is converted to the period already undergone in custody. However, the appellant is directed to pay a fine of Rs.5,000/- (five thousand) to P.W.4, Victim Birendra Kumar Sah son of Ram Nath Sah, within a period of three months from the date of receipt of the notice from the trial court. In default of payment of the fine, the appellant shall undergo rigorous imprisonment for three months. 11. In the result, this appeal is dismissed with the aforesaid modification in the sentence. (Sheema Ali Khan, J.) Patna High Court. Patna. Dated the 17th April, 2009. AFR / JA/-