@JUDGMENTTAG-ORDER
Rajesh Balia, J.@mdashFor the occurrence, which took place at 12 noon on 9.5.1998 at Badi Sadri, the appellant was tried for the offence u/s.302 IPC. The FIR in respect of occurrence was lodged by Mushtak Khan S/o Mansoor Khan at 12.40 on the same date alleging that while he was sitting at the shop of Sohanial Pan Wala, situated near Bohro Ki School, Devi Singh Rajpurohit informed him that his brother, Shabbir Khan has been stabbed by Rafiq Khan S/o Vazir Khan, Kapasiya Bazar, Near Maszid and he has been taken to hospital by Shakur Mohammad and on reaching hospital, he found that Shabbir Khan is lying dead at the operation theatre and his brother Shakur Mohd. was standing there and Shakur Mohd. informed him that his brother Shabbir Khan was going towards the market and Rafiq came from the market and near Maszid Rafiq stabbed on the left side of his stomach. He tried to intervene, but Rafiq has escaped with the knife in his house. He also stated that a dispute was going on between Rafiq and the informant''s family concerning land and this morning there has been altercation in respect of wires of tubewell between Rafiq and Shabbir Khan.
2. The "Parcha Bayan" is Ex.P7. The post-mortem report is Ex.P8 wherein a stab wound 3 cm. from skin to chest wall and 5 cm. from chest wall to lung was found on the person of Shabbir Khan and the injury was ante-mortem 4-6 hours before examination. The finding of the post-mortem was that the death is due to direct injury to the vital organs (lungs) resulting into collapse and haemothorox and excessive haemorrhage from the wound causing cardio pulmonary arrest. The post-mortem report, Ex.P8 has been proved by Dr. Gyan Mal Sankhla, PW-4. He has stated that if the property bandage would have been given and the patient would have been brought to hospital within 15-20 minutes, he could have been saved.
3. The eyewitness, Shakur Mohd. was examined as PW-2. He stated that while he was working outside his house on 9.5.1998 at about 11.30 AM, Shabbir Khan and Rafiq Khan had talk about tubewell and they fought and in that fighting Rafiq, who was having knife with him stabbed Shabbir Khan with that knife. They have met near Maszid. He has taken Shabbir Khan to hospital and he died on the way. In his cross-examination, he stated that he is related to both, deceased as well as the accused. Shakur Mohd. has stated that place where the incident has occurred is about 5-7 steps from the place he was working. He has denied the suggestion that the deceased Shabbir Khan has tried to hit the accused with the knife. There is nothing in the statement of Shakur Mohd., which can be held against his credibility. The fact that there has been altercation about the wires of tubewell on that day also finds corroboration from the statement of PW-1, who otherwise has been declared hostile witness that there has been fight between Shabir Khan and Rafiq Khan on that day. The recovery of the weapon of offence i.e. knife at the instance of the accused and it being found stained with human blood is also proved on record. The information given by the accused leading to recovery of knife, Ex.P1 7 and the recovery memo of knife, Ex.P4 has been proved by PW-13 Kishan Singh. The FSL report EX.P16 states the said knife was stained with blood and it was human blood.
4. In the aforesaid circumstances, it is established beyond reasonable doubt that in the altercation, which took place near Maszid at between 11.30 to 12 AM on 9.5.1998, Shabbir died as a result of stab wound caused by Rafiq Khan, accused-appellant.
5. Learned counsel for the appellant has urged that even in that event it is aptly tear from the very evidence that act was not premeditated and no intention on the part of accused to kill Shabbir Khan is made out.
6. It was pointed out by the learned counsel that at best it can be said that a fight, which-took place on the spur of moment, about laying of wires of tubewell in which stab injury was caused to deceased Shabbir Khan at the hands of Rafiq Khan. It is also clear from the post-mortem report as well as statement of PW-4 Dr. Gyan Mal Sankhla that the injury was not sufficient in the ordinary course of nature to cause the death and had the medical aid been made available within 15-20 minutes after giving immediate attention by bandaging would, the injured could have been saved. Only one injury was caused on the person of deceased is also indicative of the fact that this is an injury caused on the spur of moment without any intention of causing death. In these circumstances, the offence u/s.302 is not made out and at best the accused can be convicted u/s.304 Part 11 IPC. This contention from the material appears to have substance.
7. We have already noticed the gist of statements of Shakur Mohd.PW-2, Dr. Gyan Mai Sankhla PW-4 and the post-mortem report and are of the opinion that death of Shabbir Khan was caused without premeditation and without any intention to cause death. Though, we find that the bodily injury has been caused with knowledge that it may result in death. In the circumstances, the conviction u/s.302IPC is converted to Section 304 Part II IPC.
8. Coming to the sentence part of the accused appellant, it is urged by the learned counsel for the appellant that on the date of commission of crime as well as on the date the challan was filed, the accused was below 18 yrs. of age and is governed by Juvenile Justice (Care and Protection of Children) Act, 2000 and no sentence of imprisonment can be awarded to him. He placed reliance on a decision of Supreme Court in Bhola Bhagat v. State of Bihar, 1997 Cri. L.R.(SC) 783.
9. We find from the record of proceedings of this appeal, specially from the order dated 24.9.2003, the Court noticed the plea of the appellant that the appellant was less than 18 yrs. of age at the time of incident and a specific plea was raised before the trial Court, but no enquiry whatsoever was made by it with regard to the age of the appellant. On such plea being raised, the Court directed the Additional Sessions Judge (Fast Track), Pratapgarh to hold an enquiry with regard to the age of the appellant with reference to the date of the incident.
10. The report of the Addl. Sessions Judge (Fast Track) No.1, Pratapgarh dated 20.11.2003 has been received. As per record of the trial court, the learned Addl. Sessions Judge has found after examining AW-1 Vazir Khan, father of the accused, A W-2 Rafiq Khan accused himself, AW-3 Jebunisha, mother of Rafiq, AW-4 Hasmukhlal Bandi, Acting Principal, Govt. Higher Secondary School Badi Sadri and the date of birth certificate from the Govt. Senior Higher Secondary School, Badi Sadri and the progress report of Rafiq of Class 9th upto which he has read in the school, the certified copy of scholar register produced during the course of that enquiry and the report from Medical Board about the age of Rafiq was also obtained that at the time of enquiry, the age of Rafiq was stated to be 22 yrs. and as per the scholar register, his date of birth was registered as 18.9.1981, which corresponds to the medical evidence and other evidence about the present age. The learned Addl. Sessions Judge (Fast Track) has given finding that as on the date of incident i.e. 9.5.1995 the age of Rafiq was 16 years 7 months and 21 days. By taking his date of birth to be 18.9.1981 as per the scholar register against which no evidence is available, it is to be accepted that the age of the accused to be below 18 yrs. at the time of incident and at the commencement of enquiry and its completion.
11. In these circumstances, undoubtedly the appellant was entitled to benefit of the Act of 2000, which has come into force during the pendency of trial and its provisions about sentence were made applicable to pending case.
12. However, since the trial has already been completes and he has been found guilty of offence as discussed above, the question then arises what is the course to be adopted now.
13. Section 3 of the Act of 2000 reads as under:-
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 Act 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.
14. According to this provision while conviction is to be made by the Court before whom the case was pending at the time of coming into force of the Act of 2000, but the case is to be referred to Juvenile Board to pass appropriate orders.
15. Bhola Bhagwan''s case (supra) has arisen in somewhat like circumstance. It was a case in which the FIR in respect of occurrence, which took place at about 11.30 AM on 29.9.1978, was lodged on the same date and 11 accused persons were sent up to face their trial for the offences u/ss. 302/149/148 IPC.
16. The learned Addl. Sessions Judge vide his judgment dated 22.7.1983 had acquitted one of the accused Mishri Bhagat, but has convicted remaining 10 accused for the offences u/ss.302/149/148 IPC and each of the 10 accused was sentenced to undergo imprisonment for life for the offence u/s.302 read with Section 149 IPC. No separate sentence was imposed on anyone of the accused for the offence u/s.148 IPC. The High Court on appeal by three different sets of accused persons had acquitted one Sarwa Prasad, but has maintained the conviction and sentence of remaining 9 convicts. During the course of hearing, it was brought to the notice of their Lordships of Supreme Court and which engaged the attention of the Apex Court was that appellants, Chandra Sen Prasad, Mansen Prasad and Bhola Bhagat were all minors when the offence was committed.
17. The Supreme Court noticed that as on the date the statements of aforesaid three persons were recorded u/s.313 Cr. P.C, the respective ages of Chandra Sen Prasad, Mansen Prasad and Bhola Bhagat were 17 years., 21 yrs.,21 yrs. and 18 yrs. The statements u/s.313 Cr.P.C. were recorded more than four years after the date of occurrence. It was also noticed by the Court that trial court recorded in its estimation the age of Chandra Sen Prasad was 22 yrs., of Mansen Prasad was 21 yrs. and of Bhola Bhagat 18 yrs. On the date of recording of statements, however, he did not give benefit to these three appellants of the Bihar Children Act, 1970, which was then in operation in State of Bihar before commencement of Juvenile Justice Act, 1986.
18. The High Court has rejected this contention opining that it appears that except for the age given by the appellants and the estimate of the Court at the time of their examination u/s.313of the Code of Criminal Procedure, there was no other material in support of the appellants claim that they were below 18 years of age. The High Court had relied upon an earlier judgment of the Supreme Court in State of Haryana v. Balwant Singh, 1993 Suppl.(1) SCC 409. In coming to the conclusion that if the plea that the accused was a child had not been raised before the committal court as well as before the trial court, the High Court could not merely on the basis of the age recorded in the statement u/s.313 Cr.P.C. conclude that the respondent was a child within the meaning of definition of the expression under the Act on the date of the occurrence, in the absence of any other material to support that conclusion.
19. The aforesaid approach of the High Court was found to be erroneous by the Supreme Court and the Supreme Court held:
"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."
Apparently, in this case the High Court has ordered such enquiry and that enquiry has resulted in the finding that the convict was juvenile as noticed by us.
20. The Court further noticed that provisions of Bihar Act in that matter of the Juvenile Justice Act cast obligation on the court to make due enquiry about the age and to record a finding whether the person is a juvenile or not.
21. In the case proper courses to be adopted was noticed by the Supreme Court in
"In view of the underlying intendment and beneficial provisions of the Act read with clause (f) of Art.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 any youth are protected against exploitation and against moral and material abandonment, we consider it proper not to allow a technical condition that this 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".
22. With this observation, the Supreme Court directed the enquiry to be held about the age of delinquent at the time of commencement as aforesaid, and after finding was returned, the sentence of imprisonment was set at naught.
23. A similar question had arisen before the Supreme Court in
24. The Court after considering the material on 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" u/s.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".
25. The same view was again expressed by the Supreme Court in
"It is, thus, proved to the satisfaction of the Court that on the date of occurrence, the appellants had not completed 16 years of age and as such they should have been dealt with under the U.P. Children Act instead of being sentenced to imprisonment on conviction u/s.302/34 of the Act.
Since the appellants are now aged more than 30 years, there is no question of sending them to an approved school under the U.P. Children Act for detention. Accordingly, while sustaining the conviction of the appellants under all the charges framed against them, we quash the sentences awarded to them and direct their release forthwith."
26. The aforesaid principle was applied by the Supreme Court in Bhola Bhagat''s case (supra) and while maintaining the conviction of the minor appellants, their sentences were quashed.
27. Though the incident has occurred after the commencement of Juvenile Justice Act, 1986 under which a boy below age of 16 only was considered a juvenile, and trial was commenced at the Sessions Court, during the course of trial. The Juvenile Justice (Care & Protection of Children) Act, 2000 came into force w.e.f. 1.4.2001 u/s.2(k) defining juvenile, whether a boy or a girl upto age of 18 were to be considered as juvenile u/s.20 of the Act of 2000, the benefit of Act was extended to those juveniles also against whom trial was pending in any Court other than Juvenile Court. Under the provisions of Juvenile Justice Act, Section 3 provides that where as enquiry has been initiated against a juvenile and during the course of such enquiry, the juvenile ceased to be such that notwithstanding anything contained in this Act or any other law for the time being in force, the enquiry may be continued and orders may be made in respect of such person as if such person had continued to be a juvenile.
28. We see slight change with reference to their relevant date for considering the age of the offender v while in the various enactments referred to in the Supreme Court judgments noticed by us above, the relevant date for determining the age of offender was to be date u/s.3 of the Act of 2000 as in the case u/s.3 of the Act of 1986 the relevant date is that date of commencement of the enquiry and not the date of incident. This view has been expressed by the Supreme Court also in Chandra Shekhar v. State of Bihar, 2001 (2) JCC 258 at page 261 (SC).
29. Keeping in view the aforesaid provisions, we have noticed above that the appellant has been a juvenile within the meaning of Section 2(k) of the Juvenile Justice (Care and Protection of Children) Act, 2000 at all the time viz. the date of incident, commencement of enquiry and on conclusion of enquiry at the date of filing challan and at the commencement of trial.
30. Section 20 of the Act of 2000 has extended the operation of the Act of 2000 to all the proceedings in respect of juvenile pending in any court, in any area on the date on which the Act came into force in that area, the proceedings shall be continued in that Court in which it was pending at the time of commencement of the Act as if the Act of 2000 has not been passed. However, it further provided that if the Court finds that the juvenile has committed an offence, it shall record such finding and instead of passing any sentence in respect of the juvenile, forward such juvenile to the Board which shall pass orders in respect of that Juvenile in accordance with the provisions of this Act as if it had been satisfied on enquiry under this Act that a juvenile has committed the offence.
31. The purport of Section 20 is apparent that though a case pending at the time of commencement of the Act of 2000 may be continued in the Court in which it was pending at the time of commencement of the Act, notwithstanding that it was not pending in a juvenile court, the proceedings shall be continued and culminated by the Court in which the proceedings are pending. However, so far as passing of sentence under the Act of 2000 is concerned, the Court shall not pass the sentence and the matter will be sent to the Board which shall pass the order in respect of that juvenile in accordance with the provisions of the Act.
32. In view of the aforesaid it appears that in such cases where trial has been conducted by the Court other than Juvenile Court in the case of a juvenile the appropriate course open to such other court in case it finds that accused guilty to record the finding of guilt and send the matter to the Juvenile Board for passing an appropriate order in terms of Section 15 or Section 16 of the Act of 2000.
33. It is urged by the learned counsel for the appellant at this juncture that since the finding of conviction has been recorded against the appellant, who was juvenile as per the definition of juvenile u/s.2(k) of the Act of 2000 both at the time of commencement of enquiry as well as at the time of filing challan as he was below 18 years, but since at the time of commencement of the trial under the Juvenile Justice Act, 1986, which was then in force, being above 16 years not considered juvenile he was tried by the Sessions Court and squarely fell in the provision of Section 20 of the Act of 2000 and since conviction against the appellant recorded by the trial court has been modified by this Court u/s.304 Part II, wherein the appellant is not punishable with imprisonment for life, the only course open to the Court in the absence of any special circumstances is to release him on probation. He is entitled to be released on probation of good conduct whether his case is treated u/s.360 of the Criminal Procedure Code or u/ss.3, 4 and 6 of Probation Offenders Act, 1958 or in terms of Section 15( 1 )(e) of the act of 2000. Therefore, keeping in view the nature of offence for which he has been convicted and the decisions rendered by the Supreme Court referred to above, it is a fit case in which instead of directing the appellant to the Juvenile Court, this Court may release the appellant on probation of good conduct.
34. In the facts and circumstances, we are inclined to accept this submission as it is in consonance with the provisions of the Act of 200 and other Acts referred to above and also in accordance with the law laid down by the Supreme Court.
35. Accordingly, we direct that the appellant''s conviction is modified from Section 302 to-Section 304 Part II, but the sentence is set aside and he be released on probation of good conduct for the period of three years subject to execution of bail bonds in the sum of Rs.20,000/- to the satisfaction of the trial court.
The appeal is, accordingly, disposed of.
