Indira Banerjee, J.@mdash1. This appeal is against a judgment and order dated 29th January, 2010 and an order of sentence dated 30th January, 2010 passed by the Additional Sessions Judge, Fast Track, 4th Court, Malda in Sessions Trial No. 55/08 arising out of Sessions Case No. 216/2008 whereby the accused appellants, Dibakar Roy and Chandana Roy have been convicted of murder under Section 302 read with Section 34 of the Indian Penal Code and sentenced to suffer rigorous imprisonment for life as well as to fine of Rs. 3,000/- each, in default whereof, further imprisonment for 3 months more.
2. Pursuant to a First Information Report lodged by Atul Mondal, husband of the deceased Bimala Mondal, Habibpur Police Station Case No. 102/08 dated 12.06.2008 was started against the accused appellants under Sections 302/34/109 of the Indian Penal Code.
3. In the written complaint, the complainant Atul Mondal alleged that on 12th June, 2008 at about 8 a.m. his wife, Bimala Mondal, who was aged about 30 years, went to a nearby pond for bathing and Atul Mondal went to 9th mile bus stand for some work.
4. All of a sudden one Dilip Roy son of Late Mahadeb Roy came and informed Atul Mondal that Chandana Roy and Dibakar Roy both children of Tulin Roy were assaulting Atul Mondal''s wife by "pressing her neck".
5. On getting the information at about 9 a.m., Atul Mondal rushed to the pond owned by Badal Babu. On reaching the pond he saw Chandana Roy and Dibakar Roy running away from there. He then saw that his wife, Bimala Mondal was lying dead and her head was in the mud of the pond.
6. In the complaint, Atul alleged that he came to know from his next door neighbour Bharati Barman, wife of Jayanta Barman, that both Dibakar and Chandana had throttled his wife and killed her and put her head into the mud of the pond.
7. It is further alleged that the said Bharati Barman had also gone to bathe in the pond and had seen the incident from the bank of the pond. However, Dibakar and Chandana threatened her and told her not to disclose the incident to anyone. It is alleged that Dibakar and Chandana had throttled and killed the wife of the complainant at the instigation of Tulin Roy and his wife Tulsi Roy, who were charged of abetting the offence of murder.
8. In course of trial about 22 witnesses were examined on behalf of the prosecution. The accused appellants were examined under Section 313 of the Criminal Procedure Code.
9. The 1st Prosecution Witness (PW 1) being the de facto complainant, and husband of the deceased was admittedly not a eyewitness to the incident. PW 1 stated that he had been informed that Dibakar and Chandana had been assaulting his wife while she was bathing in the pond owned by Badal Babu. On hearing this, PW 1 rushed to the pond and found Dibakar and Chandana running away from the pond. He then noticed his wife was floating on the water. After the deceased was brought out of the water, PW 1 realized that she was dead. PW 1 alleged that Bharati Barman and Kamal Roy had seen Chandana and Dibakar killing his wife by throttling her neck and pushing her into the water forcibly. This deponent deposed that there was long standing land dispute between Tulin Roy and the deceased. Tulin Roy had filed a Civil Suit against the deceased. After eight years Tulin Roy had lost the suit. Out of grudge, Dibakar and Chandana being the son and the daughter of Tulin Roy killed his wife.
10. The 2nd Prosecution Witness, Dilip Roy, deposed that he knew Tulin Roy, Tulsi Roy, Chandana Roy and Dibakar Roy and identified them in Court. PW2 deposed that about six months ago at about 8 am in the morning, PW 2 was going towards the pond owned by Badalbabu, when he suddenly heard two women shouting. He rushed to the pond and found Dibakar Roy and Chandana Roy assaulting the deceased in the water. He immediately returned, searched out Atul Mondal at 9th mile bus stand and informed him about the scuffle. Thereafter, he along with Atul Mondal went to the pond. On seeing them, Dibakar Roy and Chandana Roy started running away from the pond in wet clothes. This witness deposed that he had found that Bimala Mondal was still floating in the water. He along with Atul Mondal lifted Bimala Mondal out of the water and found she had died. This witness deposed that they had noticed Dibakar''s father Tulin Roy keenly watching the murder of Bimala by Dibakar and Chandana. After departure of Dibakar and Chandana from the pond Tulin Roy also left.
11. The evidence of PW 2 is difficult to accept since there are some apparent inconsistencies in his evidence. He stated that he rushed to the pond to find Dibakar and Chandana assaulting the deceased. He, however, went away to look for Atul Mondal at the 9th Mile Bus Stand and after finding him, informed him about the scuffle. He neither raised an alarm nor informed anyone else. PW2 also stated that he returned to the pond along with Atul Mondal. When Dibakar and Chandana saw them they started running away. PW2 further stated that Tulin Roy was keenly watching the murder of Bimala by Dibakar and Chandana. After Dibakar and Chandana left Tulin Roy also left.
12. This witness was not an eye witness to the murder. He had stated that he had seen Dibakar and Chandana assaulting Bimala. Seeing this he immediately went to look for Atul Mondal and he later returned to the pond with Atul Mondal. By the time Atul Mondal and Dilip came to the pond, Bimala was floating in the water. She was already dead. Moreover, no one else stated that Tulin Roy was seen near the pond not even the complainant Atul Mondal who went to the pond along with Dilip Roy and allegedly saw Dibakar and Chandana running away.
13. The 3rd Prosecution Witness, Bablu Das deposed that he knew Tulin Roy, Tulsi Roy, Chandana Roy and Dibakar Roy who were all present in Court. This deponent identified them in Court. He deposed that about six months back at about 8 a.m. while he was standing in the vacant land in front of his house, Dilip Roy came and informed him that Bimala was being assaulted by Dibakar Roy and Chandana Roy in the pond owned by Badalbabu. PW3 stated that he, thereafter, went to the pond, and found that Bimala was dead and her dead body was floating in the pond. When this deponent went to the pond Atul, Dilip and some other co-villagers were there. Later on being informed, the police came to the place of occurrence. Significantly, this witness did not mention the presence of Tulin Roy or Tulsi Roy at the place of occurrence. The evidence of this witness is based on hearsay.
14. The 4th Prosecution Witness, Sudam Das deposed that he knew Atul Mondal and his wife Bimala. He stated that Bimala had been murdered about six months ago. He further stated that Tulin Roy and Bimala Mondal were brother and sister. There were disputes and several cases between them regarding immovable properties. ''Salishi'' was also held on several occasions. The deceased, Bimala, had won the case against her brother Tulin Roy. As a consequence there used to be frequent quarrels between them. This witness deposed that on the day of the incident, at about 8 a.m. in the morning, he heard people shouting from the direction of the pond. He went out of his house and started going towards the 9th mile bus stand through the village road. He saw Dibakar Roy, son of Tulin Roy entering his house in wet clothes. This witness further stated that he asked a villager, namely Kamala Roy, about the reason for the commotion. Kamala Roy told him that Bimala had been murdered by Dibakar Roy and Chandana Roy, son and daughter of Tulin Roy. This witness apparently signed the inquest report and he identified his signature on the inquest report.
15. The evidence of PW 4 is patently based on hearsay. According to this witness he heard commotion from the direction of the pond. Yet he started going towards 9th mile bus stand, instead of going to the pond. He stated that he saw Dibakar Roy entering his house in wet condition. Assuming that this witness did see Dibakar entered his house in wet condition that in itself does not establish Dibakar''s guilt.
16. This witness Sudam Das has stated that he asked one of the women of the village, Kamala Roy, what was the reason for commotion, whereupon Kamala told him that Bimala had been murdered by Dibakar and Chandana. The only person who was alleged eyewitness to the incident was 8th Prosecution Witness, Bharati Barman. Bharati Barman who, in her evidence stated that Kamala also saw Dibakar and Chandana assaulting Bimala but she left the pond because she had finished bathing. It was Bharati who had seen the entire incident. Moreover, Kamala had herself stated in her evidence that she had no vision in one eye and she could not see properly with the other eye too. If Kamala had left while the scuffle was going on she could not possibly have told this witness that Bimala had been murdered by Dibakar and Chandana.
17. The 5th Prosecution Witness, Jiren Roy deposed that he knew Atul and his wife Bimala (the deceased). He said that Bimala had been murdered about six months ago, in the morning. This witness stated that he had been cultivating the land by the side of the pond owned by Badalbabu. He heard some people shouting from the direction of the pond. Within a few minutes he went to the pond and found Chandana Roy and Dibakar Roy running away from the pond in wet clothes. This witness further stated that he also found Bharati Barman and Kamala Roy washing their clothes in the pond. He also found the body of the Bimala floating on the water. Seeing this he asked Bharati and Kamala about the incident, whereupon they replied that Chandana and Dibakar had caused murder of Bimala by pushing her into the water forcibly.
18. This witness stated that when he went to the pond he saw the body of Bimala floating on the water. He found Bharati and Kamala washing their clothes and he saw Dibakar and Chandana running away from the pond in wet clothes. It is incredible that Bharati and Kamala would continue to wash clothes after a gruesome incident of murder of Bimala had taken place and when Bimala''s body was floating on the water. Secondly, as observed above, as per the evidence of Bharati Barman discussed in detail later, Kamala had left the pond, before Bimala died. This witness could not have seen Kamala in the pond and Kamala could not have told him anything about the incident. This witness seems to have been tutored. It is doubtful whether he at all went to the pond. In any case when he went to the pond Bimala''s body was already floating. She was obviously dead for some time. PW 5 was admittedly not an eyewitness to the murder.
19. The 6th Prosecution Witness, Sachin Barman was also not an eyewitness to the murder. This witness stated that there was a civil case between the deceased and her brother over land which originally belonged to their father. This witness stated that Dibakar Roy and Chandana Roy had killed the deceased by pushing her into the water. He went to the pond and found Bimala lying dead in the water. The incident of murder had taken place at about 8 or 8:30 in the morning. There is not a whisper in the evidence of PW 6 of how he got to know that Dibakar and Chandana had murdered Bimala.
20. The 7th Prosecution Witness, Sonali Ojha deposed that she resided at village Rajarampur and she knew the deceased Bimala. She also knew Bimala''s elder brother, his wife, their son and their daughter. She identified Tulin Roy, Tulsi Roy, Chandana Roy and Dibakar Roy present in Court. She stated that on 12th June, 2008, Dibakar Roy and Chandana Roy had forcibly pushed the deceased into the water of the pond owned by Badalbabu. Her evidence of murder his based on hearsay and contrary to the evidence of the alleged eye witness, Bharati Barman, who stated that Bimala was bathing in the water when the alleged assault on her took place. She stated that Bharati had told her about the murder and took her to the pond where she found the dead body of the deceased in the water. She later found that Tulin was leaving the place by boarding a bus towards Habibpur. Assuming she did see Tulin board a bus, that is not relevant. She stated that she also found Dibakar and Chandana threatening the adivasi boys who had come to bathe on the other side of the pond. The adivasi boys were aged about 13 to 15 years. Those boys were not examined. None of the other witnesses mentioned the alleged threat. This witness deposed that she started shouting whereupon people gathered. Dibakar and Chandana fled away.
21. This witness stated that Bharati (PW 8) told her about the murder and took her to the pond, where she found Dibakar and Chandana threatening the Adivasi boys. However, Bharati stated that she left the pond only after Dibakar and Chandana had left the pond. This witness cannot be believed.
22. The 8th Prosecution Witness, Bharati Barman, deposed that Dibakar Roy and Chandana Roy had murdered the deceased by pushing her into the water forcibly. According to this witness she had also gone to take a bath in the same pond, where she found that Chandana Roy and Dibakar Roy scuffling with Bimala and they pushed her into the water. According to this witness she tried to come out of the water to go away from the said place but Dibakar and Chandana threatened her with dire consequences and asked her not to leave the place. When Dibakar and Chandana left the place she got an opportunity to leave. While she was running to her house she met Sonali Ojha on the way. Sonali Ojha was going towards the pond for taking a bath. At that time she told Sonali Ojha that she had seen Dibakar and Chandana killing Bimala by pushing her into the water of the pond forcibly. She claimed to be a eyewitness to the murder.
23. The 9th Prosecution Witness, Kamala Roy, a villager stated that about seven months ago at 8 am in the morning she had gone to take a bath in the pond of Badalbabu of their village Rajarampur. While she was about to finish bathing Bharati Barman came to the pond to take a bath. Thereafter, Bimala came to the pond to take a bath after which Chandana and Dibakar the accused appellants also came to the pond. Suddenly, this witness found Dibakar and Chandana assaulting Bimala while she was bathing in the pond. While this witness was leaving the pond after finishing her bath she heard Bimala shouting "look I am being beaten". Thereafter, this witness left for her home. On the way she met her son Dilip Roy and she informed him that Dibakar and Chandana were assaulting Bimala in the pond. Thereafter, Dilip Roy went to the village and informed the co-villagers, after which the villagers went to the pond. She stated that she did not see anyone else on the way except Dilip Roy. She did not know the reason why the accused appellants were assaulting Bimala. She identified the accused appellants and also the parents Tulin Roy and Tulshi Roy.
24. In cross-examination, she stated that she had no vision in her right eye and she could not see distinctly even with her left eye. She stated that she had not told anyone else of the incident except her son Dilip Roy.
25. The 10th Prosecution Witness, Md. Giasuddin, was the Assistant Sub-inspector of Police, who identified his signature on the seizure list under which wearing apparels of the deceased and her post mortem blood had been seized by sub-inspector Rakesh Kumar Gupta. The 11th Prosecution Witness, Parameswar Adhikary, a constable of Baishnabnagar Police Station stated that he had taken the body of the deceased to Malda Sadar Hospital for post mortem. The evidence of Prosecution Witness 10 and 11 is not relevant to the issue of whether the accused appellants were guilty of the murder of Bimala or not.
26. The 12th Prosecution Witness, Sunil Ojha, stated that he had land at Rajarampur, near the 9th mile bus stand under Habibpur Police Station. He stated that he also had a house there, where he resided. He stated that he had purchased the land from Bimala Mondal, the deceased. He stated that Chandana Roy and Dibakar Roy had killed Bimala Mondal in the pond. He stated that he met Bharati Barman who was returning from the pond. He noticed that Bharati was trembling out of fear. When he asked Bharati why she was trembling she stated that Dibakar and Chandana had killed Bimala Mondal. This witness deposed that he went towards the pond without asking any further questions and when he reached the pond the accused appellants Dibakar and Chandana fled away. This is contrary to the evidence of Bharati who stated that she left the pond after Dibakar and Chandana. This witness stated that by that time people had assembled there. This witness deposed that he noticed that the body of the deceased was floating on the pond. The police was informed, and while he was present the police came to the spot. This witness was also a signatory to the seizure list, under which mud from the pond was seized. This witness stated that he had purchased the land from the deceased about six months before the incident and the land was mutated in his name. He showed the Parcha to show that the land was in his name. This witness deposed that he knew that the deceased had disputes over the landed property with Tulin Roy. Bimala Mondal had won a Civil Suit against Tulin Roy, as a result of which there was enmity between Tulin and Bimala. It was because of this grudge that the accused appellants being children of Tulin had killed Bimala at the instigation of their parents Tulin and Tulsi.
27. The PW 12 was not an eyewitness to the crime. He deposed that when he went to the pond he saw the body of Bimala floating, which means she must have drowned/died several hours before he reached the spot. This witness stated that he saw Dibakar and Chandana running away. If Dibakar and Chandana had killed Bimala, they would not have stayed at the place of occurrence. Moreover as observed above Bharati deposed that she left the pond after Dibakar and Chandana had left.
28. The 13th Prosecution Witness, Damayanti Barman, was also a seizure witness. He stated that police seized some mud from the pond under a seizure list, which he had signed.
29. The 14th Prosecution Witness, Ganesh Chandra Mondal, was posted as Block Land and Land Reforms Officer at Habibpur. He stated that he was holding the same post in 2008. He produced the Land Reforms Records of Rights in respect of Mouja Rajarampur issued in the name of Sunil Ojha. The record of rights only shows that Bimala had sold her property to this witness.
30. The 15th Prosecution Witness, Sub-inspector Jesai Kisku, was in-charge of Habibpur Police Station at the time of the incident. On receipt of a complaint he lodged Habibpur Police Station Case No. 102/08 dated 12.06.2015 under Section 302/34/109 of the Indian Penal Code. He identified the formal FIR, filled up and signed by him. He stated that investigation of the case was endorsed to Sub-Inspector R.K. Gupta. The evidence of this witness is not relevant in adjudicating the question of whether the accused appellants were guilty or not.
31. The 16th Prosecution Witness, Dr. Ajoy Kumar Das, was the doctor attached to Malda District Hospital, who conducted the post mortem examination on the deceased. He opined that death was due to asphyxia that is suffocation. An Abrasion was detected, which was fresh and caused by friction with some rough object. He, however, stated that the features which he noted in his post mortem report might also be found if the body had been kept pressed under watery mud. However, in cross-examination he stated that generally a body if emerged in the water floats after about 24 hours. "Mode of asphyxia is different in case of suffocation or drowning though the resultant effect, sinking in the water is drowning." Generally, in case of forceful drowning there is possibility of consuming water but in the present case the symptom of such forceful drowning was not so prominent.
32. The 17th Prosecution Witness, who had been posted at Habibpur Police Station as ASI on the day of the incident, deposed that wearing apparels and post mortem blood of Bimala Mondal, the deceased, were seized in his presence. His evidence is not of much relevance.
33. The 18th Prosecution Witness, Jayanta Barman, resident of 9-mile bus stand at Rajarampur stated that he knew Atul Mondal of his village and he also knew the accused Tulin Roy, Dibakar Roy, Tulsi Roy and Chandana Roy. He deposed that police had seized a blue coloured frock, one pant of yellow colour and a short half pant of brown colour from the house of Tulin Roy. These wearing apparel were wet condition with mud. This witness was a signatory to the seizure list under which the said wearing apparel had been seized. This evidence of this witness was not relevant to the guilt of the accused appellant.
34. The 19th Prosecution Witness, Hriday Ranjan Mondal, deposed that he knew Atul Mondal, Bimala Mondal wife of Atul Mondal, Tulen Chandra Roy elder brother of Bimala Mondal. There was long standing land dispute between them. About one year ago, while he was working in his field he found Dibakar going away in wet clothes. After about half an hour he returned home. Suddenly he noticed that village people were going towards 9th mile bus stand. He also went to the 9th mile bus stand and found the dead body of Bimala Mondal lying on the ground of 9th mile bus stand. From the villagers he learnt that the Dibakar and Chandana had murdered Bimala Mondal by drowning her into the water of the pond because of the land dispute. Police came there and held inquest. This witness claims to have signed the inquest report. This witness did not see the incident. His evidence is based on hearsay.
35. The 20th Prosecution Witness, Sub-Inspector Ananda Kumar Mondal, is the investigating officer who took up the investigation of the case. This deponent apparently collected post mortem report of the deceased. After completion of investigation he submitted charge sheet against four accused persons waiting for their trial for offence under Section 302/34/109 of the Indian Penal Code.
36. The 21st Prosecution Witness had taken up the investigation. He claims to have visited the place of occurrence along with Inspector-in-charge of Habibpur Police Station, Bipul Majumdar and Deputy Superintendent of Police on probation Biswajit Mahato. On going there this witness found a dead body by the roadside at Rajarampur crossing. This witness apparently held inquest over the dead body in the presence of the witnesses and prepared a report. He identified his report. He also identified the signatures of others signatories. This witness claims to have examined witnesses and recorded their statements under Section 161 of the Criminal Procedure Code. During investigation this witness seized some mud from the pond in the presence of witnesses. He also seized one light blue kurta, one yellow coloured paijama, one dark brown panty from the house of Tulin Roy being the wearing apparel of accused Chandana Roy. These clothes were wet. This witness stated that he had also seized a striped saree and other wearing apparel of the deceased produced by constable Parameswar Adhikary. He identified the seizure list made by him. He stated that he had arrested the accused appellants on 12th June, 2008.
37. From the cross-examination it appears that the place of occurrence was a pond of Prabhu Nath Mawar at Kendpukur, Police Station Habibpur. This deponent stated that he did not examine the owner of the pond Prabhu Nath Mawar. He also did not examine Sukdeb Mondal and Shambhu Paswan who had owned land by the side of the said pond. He also stated that in the inquest report it is not mentioned whether the wearing apparel of the deceased was stained with mud or sand.
38. From the cross-examination it appears that in his inquest report there is no mention of staining of the wearing apparels of the deceased with mud or sand. He further stated that witness Dilip Roy had not told him that he had heard the shouting from the side of the pond.
39. The 22nd Prosecution Witness, Anil Barman was the scribe who wrote out the complaint. Nothing reveals his evidence.
40. The defence did not adduce any oral evidence. The accused appellants were examined under Section 313 and they denied their guilt.
41. By the judgment and order under appeal the learned Sessions Court held the appellant Dibakar Roy and the appellant Chandana Roy guilty of murder and convicted them both under Sections 302 read with Section 34 of the Indian Penal Code and by an order of sentence dated 30th January, 2010 sentenced them to suffer inter alia rigorous imprisonment for life.
42. On the face of the materials on record Chandana Roy was only 16 years of age at the time she allegedly committed the offence. The learned Sessions Court has recorded this in the order of sentence. Moreover, the examination of Chandana Roy under Section 313 also reveals that she was 16 years of age. Chandana Roy was, therefore a juvenile entitled to the protection of Juvenile Justice (Care and Protection of Children) Act 2006.
43. The Juvenile Justice (Care and Protection of Children) Act, 2006 defines Juvenile or child to mean a person who has not completed 18 years of age (Section 2k). Section 2(1) defines "Juvenile in conflict with law" to mean a Juvenile who is alleged to have committed an offence and had not completed 18 years of age on the date of commission of the offence.
44. Section 3 of the Juvenile Justice Act provides as follows:--
"3. Continuation of inquiry in respect of juvenile who has ceased to be a juvenile. - Where an inquiry has been initiated against a juvenile in conflict with law or a child in need of care and protection and during the course of such inquiry the juvenile or the child ceases to be such, then, notwithstanding anything contained in this Court or in any other law for the time being in force, the inquiry may be continued and orders may be made in respect of such person as if such person had continued to be a juvenile or a child."
45. Section 7A of the Juvenile Justice Act provides:--
"7-A. Procedure to be followed when claim of juvenility is raised before any court.- (1) Whenever a claim of juvenility is raised before any court or a court is of the opinion that an accused person was a juvenile on the date of commission of the offence, the court shall make an enquiry, take such evidence as may be necessary (but not an affidavit) so as to determine the age of such person, and shall record a finding whether the person is a juvenile or a child or not, stating his age as nearly as may be:
Provided that a claim of juvenility may be raised before any court and it shall be recognised at any stage, even after final disposal of the case, and such claim shall be determined in terms of the provisions contained in this Court and the Rules made thereunder, even if the juvenile has ceased to be so on or before the date of commencement of this Act.
(2) If the court finds a person to be a juvenile on the date of commission of the offence under sub-section (1), it shall forward the juvenile to the Board for passing appropriate orders, and the sentence if any, passed by a court shall be deemed to have no effect."
46. Section 49 of the Juvenile Justice Act reads:
"49. Presumption and determination of age. - (1) Where it appears to a competent authority that person brought before it under any of the provisions of this Act (otherwise than for the purpose of giving evidence) is a juvenile or a child, the competent authority shall made due inquiry so as to the age of that person and for that purpose shall take such evidence as may be necessary (but not an affidavit) and shall record a finding whether the person is a juvenile or a child or not, stating his age as nearly as may be.
(2) No order of a competent authority shall be deemed to have become invalid merely by any subsequent proof that the person in respect of whom the order has been made is not a juvenile or a child, and the age recorded by the competent authority to be the age of person so brought before it, shall for the purpose of this Act, be deemed to be the true age of that person."
47. In exercise of powers conferred under Section 68(1) of the Juvenile Justice Act, the Central Government has framed the Juvenile Justice (Care and Protection of Children) Rules 2007, hereinafter referred to as the Juvenile Justice Rules.
48. Rule 12 of the said Rules provides as follows:--
"12. Procedure to be followed in determination of age. - (1) In every case concerning a child or a juvenile in conflict with law, the court or the Board or as the case may be, the Committee referred to in Rule 19 of these rules shall determine the age of such juvenile or child or a juvenile in conflict with law within a period of thirty days from the date of making of the application for that purpose.
(2) The court or the Board or, as the case may be, the Committee shall decide the juvenility or otherwise of the juvenile or the child or, as the case may be, the juvenile in conflict with law, prima facie on the basis of physical appearance or documents, if available, and send him to the observation home or in jail.
(3) In every case concerning a child or juvenile in conflict with law, the age determination inquiry shall be conducted by the court or the Board or, as the case may be, the Committee by seeking evidence by obtaining -
(a)(i) the matriculation or equivalent certificate, if available; and in the absence whereof;
(ii) the date of birth certificate from the school (other than a play school) first attended; and in the absence whereof;
(iii) the birth certificate given by a corporation or a municipal authority or a Panchayat;
(b) and only in the absence of either (i, (ii) or (iii) of clause (a) above, the medical opinion will be sought from a duly constituted Medical Board, which will declare the age of the juvenile or child. In case exact assessment of the age cannot be done, the court or the Board or, as the case may be, the Committee, for the reasons to be recorded by them, may, if considered necessary, give benefit to the child or juvenile by considering his/her age on lower side within the margin of one year,
and, while passing orders in such case shall, after taking into consideration such evidence as may be available, or the medical opinion, as the case may be, record a finding in respect of his age and either of the evidence specified in any of the clauses (a)(i),, (ii), (iii) or in the absence whereof, clause (b) shall be the conclusive proof of the age as regards such child or the juvenile in conflict with law.
(4) If the age of a juvenile or child or the juvenile in conflict with law is found to be below 18 years on the date of offence, on the basis of any of the conclusive proof specified in sub-rule (3), the court or the Board or, as the case may be, the Committee shall in writing pass an order stating the age and declaring the status of juvenility or otherwise, for the purpose of the Act and these rules and a copy of the order shall be given to such juvenile or the person concerned.
(5) Save and except where, further inquiry or otherwise is required, inter alia, in terms of Section 7-A, Section 64 of the Act and these rules, no further inquiry shall be conducted by the Court or the Board after examining and obtaining the certificate or any other documentary proof referred to in sub-rule (3) of this rule.
(6) The provisions contained in this rule shall also apply to those disposed of cases, where the status of juvenility has not been determined in accordance with the provisions contained in sub-rule (3) and the Act, requiring dispensation of the sentence under the Act for passing appropriate order in the interest of the juvenile in conflict with law."
49. In every case concerning a child or a juvenile in conflict with law, the age determination enquiry has to be conducted in the manner stipulated in Rule 12(3), by reliance upon the following documents in order of priority.
(i) Matriculation or equivalent certificates if available,
(ii) If matriculation or equivalent certificate is not available, then the certificate from the School first attended, certifying the Date of Birth recorded by the School.
(iii) Birth Certificate given by a corporation or municipal authority or Panchayat.
(iv) In the absence of any of the above documents, the medical opinion is to be sought from a duly constituted Medical Board, which will declare the age of the juvenile.
50. In case exact assessment of the age cannot be done, the Court or the Juvenile Justice Board or, as the case may be, the Child Welfare Committee, for reasons to be recorded by them, may, if considered necessary, give benefit to the child or juvenile by considering his/her age on lower side within the margin of one year.
51. In this case, it appears that the plea of juvenility of the accused appellant No. 2 Chandana Roy was not taken before the Sessions Court. However, as observed above, the Sessions Court has, in its judgment and order under appeal recorded that she was about sixteen years of age.
52. It is well settled that defence of juvenility can be taken at any time as held by the Supreme Court in Gopinath Ghosh v. State of West Bengal reported in , 1984 Suppl. SCC 228, Abuzar Hossain v. State of West Bengal reported in , (2012) 10 SCC 489 and Pradip Kumar v. State of U.P. reported in , (1995) Suppl. 4 SCC 419. Even if the defence of juvenility is not taken, even then, the Sessions Court would have to consider the question of juvenility, where it is apparent that an accused was less than 18 years of age on the date of the offence alleged.
53. Section 15 of the Juvenile Justice (Care and Protection of Children) Act, 2000 provides as follows:
"15. Order that may be passed regarding juvenile.- (1) Where a Board is satisfied on inquiry that a juvenile has committed an offence, then, notwithstanding anything to the contrary contained in any other law for the time being in force, the Board may, if it so thinks fit, -
(a) allow the juvenile to go home after advice or admonition following appropriate inquiry against and counselling to the parent or the guardian and the juvenile;
(b) direct the juvenile to participate in group counselling and similar activities;
(c) order the juvenile to perform community service;
(d) order the parent of the juvenile or the juvenile himself to pay a fine, if he is over fourteen years of age and earns money;
(e) direct the juvenile to be released on probation of good conduct and placed under the care of any parent, guardian or other fit person, on such parent, guardian or other fit person executing a bond, with or without surety, as the Board may require, for the good behaviour and well-being of the juvenile for any period not exceeding three years;
(f) direct the juvenile to be released on provision of good conduct and placed under the care of any fit institution for the good behaviour and well-being of the juvenile for any period not exceeding three years;
[(g) make an order directing the juvenile to be sent to a special home for a period of three years: Provided that the Board may, if it is satisfied that having regard to the nature of the offence and the circumstances of the case, it is expedient so to do, for reasons to be recorded, reduce the period of stay to such period as it thinks fit]
(2) The Board shall obtain the social investigation report on juvenile either through a probation officer or a recognised voluntary organisation or otherwise, and shall take into consideration the findings of such report before passing an order.
(3) Where an order under clause (d), clause (e) or clause (f) of sub-section (1) is made, the Board may, if it is of opinion that in the interests of the juvenile and of the public, it is expedient so to do, in addition make an order that the juvenile in conflict with law shall remain under the supervision of a probation officer named in the order during such period, not exceeding three years as may be specified therein, and may in such supervision order impose such conditions as it deems necessary for the due supervision of the juvenile in conflict with law:
Provided that if at any time afterwards it appears to the Board on receiving a report from the probation officer or otherwise, that the juvenile in conflict with law has not been of good behaviour during the period of supervision or that the fit institution under whose care the juvenile was placed is no longer able or willing to ensure the good behaviour and well-being of the juvenile it may, after making such inquiry as it deems fit, order the juvenile in conflict with law to be sent to a special home.
(4) The board shall while making a supervision order under sub-section (3), explain to the juvenile and the parent, guardian or other fit person or fit institution, as the case may be, under whose care the juvenile has been placed, the terms and conditions of the order and shall forthwith furnish one copy of the supervision order to the juvenile, the parent, guardian or other fit person or fit institution, as the case may be, the sureties, if any, and the probation officer."
54. Section 16 of the Juvenile Justice (Care and Protection of Children) Act, 2000 provides that notwithstanding anything to the contrary contained in any other law for the time being in force, no juvenile in conflict with law is to be sentenced to death or to imprisonment for any term which may extend to imprisonment for life or be confined to prison for default in payment of fine or for default in furnishing security. In no circumstances can a juvenile be detained beyond 3 years.
55. The accused appellant No. 2 being a juvenile, her trial by the Sessions Court and her conviction are without jurisdiction. The conviction has been set aside by the Supreme Court.
56. The question is, whether conviction of Dibakar for murder under Section 302 of the Indian Penal Code is legally sustainable having regard to the evidence on record.
57. Of all the witnesses who deposed on behalf of the prosecution, there was only one witness who allegedly saw the entire incident, namely Bharati Barman.
58. Another witness, Kamala, had allegedly seen Dibakar and Chandana assaulting Bimala, but then she left the pond since she had finished bathing.
59. The conduct of both these witnesses seem unnatural. It is rather strange that after seeing a known person being assaulted and/or killed in front of their eyes, one of the witnesses Kamala simply left the pond after finishing her bath in the usual course, and the other witness Bharati continued to bathe and wash clothes in the same pond.
60. Bharati''s evidence that she could not leave the pond as Dibakar and Chandana threatened her, is also difficult to accept. There seems to be no plausible reason why Dibakar and Chandana should threaten Bharati, but let Kamala go. Moreover, if Dibakar and Chandana were engaged in a scuffle with Bimala, they could not have prevented Bharati from leaving.
61. It is also important to note that Bharati deposed that she left the pond only after Dibakar and Chandana went away after killing Bimala. However, several witnesses who came afterwards including in particular the complainant Atul, himself, Dilip Roy (PW 2), Jiren Roy (PW 5), Sonali Ojha (PW 7), Sunil Ojha (PW 12) all deposed that when they went to the pond Bimala was already dead. They all stated that they saw Dibakar and Chandana running away.
62. If Dibakar and Chandana were seen running away by all the aforesaid witnesses then Bharati''s evidence that she left the pond after Dibakar and Chandana left is not true. Her evidence that Dibakar and Chandana threatened her is not true. If Bharati''s evidence is to be believed then all the witnesses who claimed to have seen Dibakar and Chandana running away were not speaking the truth.
63. From the evidence of the witnesses, it is patently clear that Bharati had left the pond before Atul, Dilip and the others had arrived. Sonali Ojha went to the pond with Bharati after being informed by Bharati of the murder. Except Jiren, none of the prosecution witnesses who went to the pond and found Bimala dead stated that they saw Bharati in the pond and/or near the pond. They all stated that they saw Dibakar and Chandana running away. The evidence of Bharati is, therefore, difficult to believe. Her conduct also seems unnatural. It is incredible that she should have continued washing clothes while a gruesome incident of murder was taking place in front of her eyes. Furthermore, Bharati deposed that she saw Dibakar and Chandana killing Bimala after a scuffle. There are no indication of any scuffle in the post mortem report.
64. Kamala Roy who deposed that she had seen Dibakar and Chandana assaulted Bimala and pushed her into the water admitted in cross-examination that she was visually challenged as her right eye was visionless and she could not see distinctly even with her left eye. Furthermore, the post mortem report does not indicate any assault.
65. At least seven prosecution witnesses namely the complainant (PW 1), PW 2, PW 3, PW 5, PW 6, PW 7 and PW 12 deposed that they found the dead body of Bimala floating on the water. If the scuffle had just taken place the dead body would not have been seen floating by so many witnesses as it ordinarily takes time for a body to float. The evidence of forcible drowning is also not substantiated by the post mortem report.
66. Chandana and Dibakar were charged with murder of Bimala Mondal pursuant to a complaint in writing lodged by P.W. 1, Atul Mondal, husband of the deceased.
67. In the complaint in writing, he stated that Shri Dilip Roy (PW2) had informed him that Chandana and Dibakar were assaulting his wife by pressing his neck.
68. In the complaint, he stated that on getting the information, he rushed to the pond of Badal Bose. On reaching the place of occurrence, he saw Chandana and Dibakar fleeing from the place of occurrence. He saw his wife, Bimala lying dead and her head was in the mud of the pond.
69. In the complaint, he further stated that he came to know from his next door neighbour, Bharati Barman (PW8) that Dibakar and Chandana had throttled his wife and killed her and put her head into the mud of the pond.
70. The allegation in the complaint was that Dibakar and Chandana had throttled and killed the complainant''s wife at the instigation of Tulin Roy and his wife, Tulsi Roy.
71. The allegation that Dibakar and Chandana throttled the deceased Bimala is not supported by the post-mortem report. According to the post mortem report, the cause of the death of Bimala was asphyxia and/or suffocation which can very well happen when a person drowns.
72. The evidence and materials on record reveal that there was litigation between Bimala, the deceased, and her brother, Tulin Roy. The prosecution has suggested that Bimala had been murdered out of grudge since, she had won a Civil suit instituted by her brother, Tulin, father of Dibakar and Chandana.
73. In our criminal jurisprudence, an accused is presumed to be innocent. An accused cannot be convicted and sentenced unless proved guilty beyond all reasonable doubts.
74. It is possible that having lost litigation, Tulin may have had a grudge against his sister, Bimala. There is evidence of ill feeling and bitterness between Tulin and Bimala into which the respective family members of Tulin and Bimala might have got embroiled. However, there cannot be conviction for murder, in the absence of proof beyond reasonable doubt.
75. Just as enmity can lead to a murder, enmity also gives rise to such strong suspicion so as to cloud ordinary reasoning. Atul did not hesitate to implicate his brother-in-law and his wife in the complaint in writing, though he did not find his brother-in-law or his wife anywhere in the scene. He was allegedly told by Dilip Roy that Dibakar and Chandana were assaulting Bimala. On receiving this information, Atul went towards the pond. When he reached the place, he saw Dibakar and Chandana running away.
76. In his oral evidence in Court, Atul (P.W. 1) stated that when he reached the place of occurrence he saw Dibakar and Chandana running away. It is difficult to believe that Dibakar and Chandana should remain in the place of occurrence till the arrival of Atul Mondal. Atul also stated that he found the body of his wife floating. When a person drowns, it usually takes several hours to float. If Dibakar and Chandana had been seen running away after Atul reached the place of occurrence that would mean that Dibakar and Atul went running away from near the pond long after Bimala had died. If the incident had just taken place then, the body would not have been seen floating. If Dibakar and Chandana had committed the murder they would perhaps have not been seen at the place of occurrence hours after the murder.
77. Atul had gone to the pond with Dilip Roy. As per the evidence of Dilip, Atul and Dilip went to the pond, where the incident had taken place, together. While Dilip deposed that he had seen Tulin, Atul did not say so either in his complaint in writing or in his evidence in Court.
78. In this case, as observed above, the evidence of the so-called eye witnesses is difficult to believe for the reasons as discussed above. In any case, the post mortem doctor, who was examined in Court did not give any specific opinion that the death was homicidal in nature. On the other hand, the evidence of the post mortem doctor does not support the prosecution case. Rather it contradicts the prosecution case. Having regard to the opinion of the post mortem doctor that a body would normally float about 24 hours after being submerged in water and having regard to his opinion that in case of forceful drowning there is possibility of consuming water but in this case, the symptoms of forceful drowning were not prominent, we are of the view that the appellant No. 1, Dibakar Roy has to be given the benefit of doubt. The conviction of the appellant No. 1, Dibakar Roy cannot be sustained.
79. The appeal is allowed.
80. The judgment and order of conviction and sentence is set aside. The accused appellant No. 1 also be set free.
81. Photostat certified copy of this judgment, if applied for, be supplied to the parties expeditiously, subject to compliance with the requisite formalities.
Sahidullah Munshi, J.@mdashI Agree.
