Virendra Singh, J.@mdashThis appeal is filed by Sri Ashish Sharma the accused who is convicted in Sessions Trial No. 89/1999 by Additional Sessions Judge (Court No. 1), Barabanki arising out of Case Crime No. 1154/1999 for the offence u/s 147/148/149/302 IPC, P.S. Kotwali, District Barabanki and is sentenced for the offence u/s 147 IPC for a period of one year imprisonment, for the offence u/s 148 IPC for a period of two years imprisonment, for the offence u/s 302/149 IPC for a period of life imprisonment and a fine of Rs. 5,000/ - and in default of payment of fine for a period of two years additional rigorous imprisonment.
2. We have heard learned Counsel for the appellant as well as learned AGA on behalf of the State and perused the record.
3. Before us, this appeal is pressed merely on this ground on behalf of appellant that the appellant is in jail in connection of the judgment and order dated 29.10.2004. It is significant to mention that the appellant''s date of birth is 05.08.1981 as per high school certificate and on the date of occurrence, i.e. 11.11.1998, the appellant was 17 years 2 months and 6 days old which shows that the appellant was a juvenile at the time of the alleged occurrence in the light of provisions of juvenile justice Act of 2000. As per the age mentioned in the proceedings relating to Section 313 Cr.P.C. taken place on 15.09.2001, the appellant had stated that he is about 20 years old, learned Trial Court has also stated in its judgment dated 29.10.2004 that as per the statement of the counsel of the accused, the accused persons are about 23 and 25 years old. This fact does also support the version of the appellant that he was juvenile at the time of the occurrence. The learned Trial Court thereby ignoring the fact that the appellant was a juvenile on the date of occurrence sentenced the appellant erroneously and therefore, the sentence of the accused appellant is bad in the eyes of law.
4. As per the contention of the learned AGA on behalf of the State, the judgment and order thereby sentencing the accused for the alleged offences is not erroneous which is based on proper appreciation of evidence on record by the learned Trial Court. There is ample evidence on record to support the prosecution story and the learned Lower Court has rightly held that the accused appellant is guilty for the offence u/s 147/148/302 read with Section 149 IPC. So far as the question of age of the accused is concerned, it is true that the date of birth of the accused appellant is 05.08.1981 as per record of Government College, Barabanki which is furnished on record by the appellant, but the appellant is not entitled for the benefit of Juvenile Justice Act, being not a juvenile below 16 years of age at the relevant date of occurrence in the light of provision of the Juvenile Justice Act of 1986 which was applicable at the time of alleged occurrence restricting the age of a Juvenile up to 16 years.
5. In the light of the contentions of both the parties, we have gone through the entire facts and circumstances on record. A question for determination is cropped up in this appeal as to "whether the appellant is entitled for the benefit of the provisions of Juvenile Justice Act of 2000" in this case.
6. Before parting with the judgment, it is worth consideration that as per admitted facts pertaining to the age of the accused, the accused appellant was 17 years, 2 months and 6 days old at the time of the alleged occurrence. The plea of juvenility though was taken by the appellant before the Trial Court too but the fact of juvenility was not decided by the trial court. The plea of juvenility now is again taken in this appeal before this Court on the basis of high school certificate disclosing his date of birth 05.08.1981. It is an admitted fact that the appellant was below 18 years of age at the time of occurrence alleged to have been occurred on 11.11.1998.
7. In this regard, first of all, we have to go through the definition of "juvenile" as given under Sections 2(k) and 2(l) applicable as per Juvenile Justice Act 2000 for the offences committed prior to 01.04.2001 when the Juvenile Justice Act 2000 came into force which is reproduced below:
2(k) "juvenile" or "child" means a person who has not completed eighteenth year of age;
2(l) "juvenile in conflict with law" means a juvenile who is alleged to have committed an offence and has not completed eighteenth year of age as on the date of commission of such offence.
Section 7A and Section 20 of the Juvenile Justice Act 2000 are also very much relevant in this regard which are reproduced as follows:
7A. 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 inquiry, 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 recognized at any stage, even after final disposal of the case, and such claim shall be determined in terms of the provisions contained in this Act and the rules made there under, even if the juvenile has ceased to be so on or before the date of commencement of the 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.
20. Composition of the Child Welfare Committee - (1) The Committee shall consist of a Chairperson and four other members, of whom at least one shall be a woman.
(2) The Chairperson and members of the Committee shall be appointed on the recommendation of a Selection Committee setup by the State Government for the purpose under Rule 91.
(3) The Selection Committee, while selecting the Chairperson and Members of the Committee, shall as far as possible ensure that none of them are from any adoption agency.
(4) The State Government shall provide for such training and orientation in child psychology, child welfare, child rights, national and international standards for juvenile justice to all members of the Committee as it considers necessary.
8. In reference to above provisions of 2000 Act, the case of Hariram v. State of Rajasthan and Anr. reported in (2010) 1 SCC (Cri) 1987 is to be perused in which the Hon''ble Supreme Court has stated in para 28, 29, 37 and 38 as follows:
28. One of the problems which has frequently arisen after the enactment of the Juvenile Justice Act, 2000, is with regard to the application of the definition of "juvenile" under Sections 2(k) and (l) in respect of offences alleged to have been committed prior to 01.04.2001 when the Juvenile Justice Act, 2000 came into force, since under the 1986 Act, the upper age-limit for male children to be considered as juvenile was 16 years.
29. The question which has been frequently raised is, whether a male person who was above 16 years on the date of commission of the offence prior to 01.04.2001, would be entitled to be considered as a juvenile for the said offence if he had not completed the age of 18 years on the said date. In other words, could a person who was not a juvenile within the meaning of the 1986 Act when the offence was committed, but had not completed 18 years, be governed by the provisions of the Juvenile Justice Act, 2000, and be declared a a juvenile in relation to the offence alleged to have been committed by him.
37. The said decision in Pratap Singh case led to the substitution of Section 2(1) and the introduction of Section 7-A of the Act and the subsequent introduction of Rule 12 in the Juvenile Justice Rules, 2007, and the amendment of Section 20 of the Act, read with Sections 2(k), 2(l), 7-A and Rule 12, Section 20 of the Juvenile Justice Act, 2000, as amended in 2006, is probably the section most relevant in setting at rest the question raised in this appeal, as it deals with cases which were pending on 01.04.2001, when the Juvenile Justice Act, 2000, came into force.
38. The same is, accordingly, reproduced hereinbelow:
20. Special provisions in respect of pending cases -Notwithstanding anything contained in this Act, all proceedings in respect of a juvenile pending in any court in any area on the date on which this Act comes into force in that area, shall be continued in that court as if this Act had not been passed and 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 the 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 inquiry under this Act that a juvenile has committed the offence.
Provided that the Board may, for any adequate and special reason to be mentioned in the order, review the case and pass appropriate order in the interest of such juvenile.
Explanation - In all pending cases including trial, revision, appeal or any other criminal proceedings in respect of a juvenile in conflict with law, in any court, the determination of juvenility of such a juvenile shall be in terms of Clause (l) of Section 2, even if the juvenile ceases to be so on or before the date of commencement of this Act and the provisions of this Act shall apply as if the said provisions had been in force, for all purposes and at all material times when the alleged offence was committed.
The proviso and the Explanation to Section 20 were added by Amendment Act 33 of 2006, to set at rest any doubt that may have arisen with regard to the applicability of the Juvenile Justice Act, 2000, to cases pending on 01.04.2001, where a juvenile, who was below 18 years at the time of commission of the offence, was involved.
9. Perusal of the law as aforesaid shows that in the aforesaid case, the Hon''ble Supreme Court has held that in regard to the claim of juvenility, the accused though have completed 16 years of age on the date of commission of the offence but being below 18 years of age on the date of commission of offence, is entitled for benefit of the 2000 Act. The appellant in the instant appeal before us though was not a juvenile of 16 years old at the time of occurrence but under literary application of Section 2(h) and "juvenile in conflict with law" u/s 2(1) by virtue of explanation to Section 20 of the 2000 Act, his claim is tenable even after he had crossed the age of 18 years on or before the commencement of the 2000 Act or was undergoing sentence after conviction. Therefore, we are required to lean in favor of appellant for holding the accused as juvenile. Hence Looking into the aforesaid law, as is laid down by Hon''ble Apex Court, it is crystal clear that in this pending appeal, in this Court, the determination of juvenility of appellant is to be considered in the terms of Section 2(l) even if the appellant ceases to be so, before the commencement of the Act of 2000 and the provisions of the Act of 2000 would apply as if the said provisions had been in force, when the alleged offence was committed. In the instant case, the alleged offence is said to have been committed on 11.11.1998. As per admitted date of birth, of the appellant, which is 05.08.1981 as per high school certificate, no doubt the appellant was 17 years 2 months and 6 days old, meaning thereby that as per the provisions of Juvenile Justice Act prevailed in the year 1998, according to Act of 1986, the appellant was not a juvenile on the date of occurrence on 11.11.1998 being the appellant more than 16 years old, but looking into the law as is aforesaid, regarding the claim of juvenility, despite the fact that appellant had completed 16 years of his age on the date of commission of the offence, but being below 18 years of his age on the date of commission of offence, the appellant is entitled to the benefit of the Act of 2000 which is made applicable for the pending cases also as per explanation added in Section 20 of the Act of 2000.
10. The learned AGA has contended that no doubt the law pertaining to juvenile as per provisions of Act of 2000 is made applicable in the pending cases too, but the fact of juvenility should be determined by the Juvenile Justice Board as is provided in the Act of 2000. Now the question before us further arises to be considered in this appeal as to whether the appellant is liable to be sent to Juvenile Justice Board as is provided in Section 7 A (2) of 2000 Act providing that 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.
In this regard the case of Upendra Kumar v. State of Bihar reported in 2005 SCC (Criminal) 778 is very much relevant in which the Hon''ble Apex Court in para 5 has held as follows:
5. The course this Court adopted in Gopinath Ghosh case as also in Bhola Bhagat case was to sustain the conviction but, at the same time, quash the sentence awarded to the convict. In the present case, at this distant time, the question of referring the appellant to the Juvenile Board does not arise. Following the aforesaid decisions, we would sustain the conviction of the appellant for the offences for which he has been found guilty by the Court of Sessions, as affirmed by the High Court, at the same time, however, the sentence awarded to the appellant is quashed and the appeal is allowed to this extent. Resultantly, the appellant is directed to be released forthwith if not required in any other case.
In the case of Vikram Singh v. State of Haryana reported in 2010 (1) SCC (Criminal) 1158 also, the Hon''ble Apex Court has held in para 6 as follows:
6. It appears that the High Court judgment is of 26.05.2006 when Rule 97(2) as applicable was not in existence as it was brought into force in 2007 (i.e. 26.10.2007). We are of the view that the appellant is entitled to the benefit under the provisions of the 2000 Act as amended from 22.08.2006 and the 2007 Rules. Therefore, while confirming the conviction, considering the period of custody already suffered by the appellant, we direct that he shall be released from custody forthwith unless he is required in any other case.
In the case of Babban Rai and Ors. v. State of Bihar reported in 2009 (1) SCC (Criminal) 165 the Hon''ble Apex Court in para 5 has held as follows:
5. So far as the convictions of these two appellants as confirmed by the High Court, are concerned, learned Counsel appearing on behalf of the appellants is not in a position to point out any error in the order of the High Court whereby convictions of the appellants have been confirmed. Having gone through the impugned judgment and the records, we also do not find any ground to hold that the High Court was not justified in upholding the convictions of the appellants. This being the position, we are of the view that the High Court has not committed any error in upholding convictions of the appellants. Now, the question arises in relation to sentences. In view of our aforesaid finding that these two appellants were juvenile on the date of alleged occurrence and they have now attained majority, it would be just and expedient to set aside their sentences and pass an order of releasing them as they cannot be sent to remand home.
In the case of Satish alias Dhana v. State of Madhya Pradesh and Ors. reported in 2010 (1) SCC (Criminal) 1320 the Hon''ble Apex Court has further held in para 5 and 6 as follows:
5. In Bhola Bhagat v. State of Bihar, this Court after referring to the decision ion Gopinath Ghosh v. State of W.B. And Bhoop Ram v. State of U.P. held that an accused who was a juvenile cannot be denied the benefit of provisions of the 2000 Act. The course this Court adopted in Gopinath and Bhola Bhagat cases was to sustain the conviction, but at the same time modify the sentence awarded to the convict.
6. At this distant point of time to refer the appellant to the Juvenile Board would not be proper. Therefore, while sustaining the conviction for the offence for which he has been found guilty, the sentence awarded is restricted to the period, already undergone. The appellant be released from custody forthwith unless required to be in custody in connection with any other case.
11. In the aforesaid cases, the Hon''ble Apex Court has held that where on the date in question the accused was below 18 years stood fully established on record and the Juvenile Justice (Care and Protection of Children) Act 2000 was already in force at the time of pendency of the appeal looking into the special provisions in respect of the pending cases, benefit under the aforesaid Act should have been extended to the accused in respect of the imposition of sentence. The Hon''ble Apex Court without questioning the conviction, instead of referring the accused to Juvenile Board, maintaining the conviction held that the sentence may be quashed with the direction that the accused be released forthwith, if not required in any other case.
12. In the light of the aforesaid provisions of law and the facts on record, we are of this view that the appellant admittedly is and we uphold so, a juvenile being below 18 years of age at the time of alleged occurrence and therefore, we hereby further upholding the conviction of the appellant as the same has not been challenged before us merely taking recourse of the plea of juvenility, we find that since the accused/appellant is held to be a juvenile at the stage of appeal, it is not proper to refer the appellant to Juvenile Justice Board in view of the law laid down by Hon''ble Apex Court in the aforesaid cases and therefore we hereby direct the accused to be released considering the period of custody already undergone by the appellant and therefore, the accused/appellant be released from custody forthwith. Hence, this appeal is allowed accordingly.
