Kachharu @ Sushil v. The State of Chhattisgarh

Mr. YC Sharma, counsel for the appeltant. Mr. Ravindra Agrawat, Panel Lawyer for the State. QralJycigment (Deiivered on 29th October, 2009) Per Dhirendra Mishra, J In comptiance of the order dated 4.4.2008, learned II Additional Sessions Judge has conducted enquiry for determining the age of appeliant Kachharu @ Sushil, s/o Paras Ram, and submitted his report along with The learned Addl. Sessions Judge has complete enquiry proceedings. assessed the age of appeilant on the date of incident i.e. 21.4.2001 as 17 years. Objection has been filed on behalf of the State to the above report of the trial Court regarding finding on age of the appellant under Section 7A of "the the Juvenile Justice (Care and Protection of Children) Act, 2000 (in short Act, 2000"). Mr. Ravindra Agrawal, learned counsel for the State, submits that the finding of the trial Court is based on evidence of father of the appellant, school admission register Article 'A' and report of the radiologist dated

3.7.2008. However, in the enquiry proceedings, the State was not afforded wlth an opportunity to cross-examine father of the accused and the witness, who has proved the school admission register. It has been further objected that the report of radiologist is not specific and it on!y says that the appellant was more than 17 years of age, whereas in other evidence available on record of the trial Court, such as memorandum of the appellant recorded under Section 27 of the Evidence Act and other documents, age of the appellant is mentioned as 18 years on the date of incident. ht.i-rfgaa1? ^ On the other hand, Mr. YC Sharma, tearned counsei appearing for the appeilant, submits that there is unrebutted evidence in the form of school admission register and report of the radiologist, which have been duty proved and accepted by the trial Court, according to which age of the appellant was less than 18 years on the date of incident. We have heard learned counset for the parties and perused the report of the iearned Addl. Sessions Judge. Learned AddS. Sessions Judge during enquiry vide his order dated

25.4.2008 had forwarded the copy of the order dated 4.4.2008 of the High Court to the AGP and directed him to file all the relevant documents with respect to age of appellant Kachharu for the purposes of enquiry so at report coutd be prepared, From subsequent order sheets also, it appears that Uie State was represented ftrough AGP in the enquiry proceedings. During enquiry, accused Kachharu was referred to radiotogist and the radiologist opined that age of Kachharu is more than 17 years. That apart, the trial Court has also examined Paras Ram-father of the appellant, who has categorically deposed that his son Kachharu was born in the year 1983 on 14 September. He had admitted his son to Hasua Primary School, Baloda and at the time of his admission, his date of birth was recorded. This witness has been cross-examined by the AGP and questions were also put to this witness by the tria! Court under Section 165 ofthe Evidence Act.

The document of Articie 'A-1(C)' has been duly proved from the original record by Narayan Das Vaishnav-Headmaster of Govt. Boys' Primary School, Baloda Bazar, Distt. Raipur, and he has also stated that date of birth ofthe appeliant 's recorded in the admission register as 14.9.1983. Thus, on ttie basis of above evidence, learned Addi. Sessions Judge has determined age of the appellant to be more than 17 years. In view of the above facts, objection of the State against the report of learned Addl. Sessions Judge with regard to age of the appellant is without any substance and accordingly, the same is rejected. The appellant has preferred this criminal appeal against the judgment sentence dated 9.9.2002 and order of of conviction passed S.T.No.339/2001 whereby learned I! Additional Sessions Judge, Bafoda Bazar, Distt. Raipur, after holding the appellant guilty for causing homicidal death of Motu @ Gorelal, has convicted him under Section 302 of the IPC and sentenced to life Imprisonment, pay a fine of Rs.1,000/-, thereof, to undergo additionai Ri for six months. in default Fvlr.

YC Sharma, learned counsel for the appellant, has challenged conviction of the appellant only on the ground that at the time of incident, the -,- -3- appellant was juvenile as he was less than 18 years. This objection was raised fpr the first time in this appeal by way of amendment in the memo of appeal; the same was entertained and the trial Court was directed to conduct enquiry for determining the age of the appellant, and report of the trial Court has already been received, accordingly to which age of the appellant has been opined above 17 years and less than 1 8 years on the date of incident. Learned counsel for the appeliant does not dispute the finding of conviction recorded by the trial Court based on the evidence adduced by the prosecution. However, reiying upon the judgments in the matters of Babban Rai and another Vs. State of Bihai3, Bhola Bhagat Vs. State of BihaP and Jayendra and another Vs.

State of Uttar Pradesh , it was argued that sentence imposed upon the juvenile in conflict with law in sessions trial conducted by regular Sessions Court is liable to be set aside. On the other hand, Mr. Agrawal, learned counsel for the State, does not dispute the proposition of law propounded in the cited juc^ments and applicability of the same in the facts of the present case. We have heard learned counsel for the parties. We have already obsen/ed in the foregoing paragraphs that appellant was juvenile on the date and time of the incident as is established from She report of the trial Court on the basis of enquiry conducted under Section 7A of the Act, 2000. Conviction of the appellant under Section 302 of IPC by the learned Addl. Sessions Judge has not been challenged and chailenge is only to the sentence part, whereby a juvenile has been sentenced to undergo life imprisonment. in the m-itter of Jayendra , the Hon'ble Supreme Court was seized of the matter where a juvenile was sentenced to life imprisonment offence committed by him during his childhood: Considering the fact that the for the offence was committed while the appellant was child and that he had attained the age of 23 years when the appeal was decided, Supreme Court while upholding his conviction, quashed the sentence imposed upon him and directed his release forthwith. the Hon'bie In the case of BhoSa Bhaga^, the Hon'ble Supreme Court relying upon the decision of three Judges Bench of the Supreme Court in the matter of Pradeep Kumar Vs.

State of UP, held that since on the date of occurrence, the appellants had not completed 16 years of age, they should have been instead of being sentenced to dealt with under the U.P. Children Act imprisonment on conviction under Section 302/34 of the Act. However, '2008 Cri.L.J. 1038 2 (1997) 8 SCC 720 'AIR1982SC685 -^ considering that the appellants were more than 30 years at the time of defivery ofjudgment, th®Hon'ble Supreme Court while sustaining conviction of the appellants under all the charges framed against them, quashed the sentences awarded to them and directed their release forthwith. In Babban Rai also, the appellants were convicted for murder and sentenced to life imprisonment. Age of the accused persons on the date of occurrence was found to be below 16 years, they were hefd entltted to protection of 2000 Act and in these circumstances, Court upheld the order passed by the High Court whereby conviction of ths appellants by the trial Court was upheld and sentence imposed on them was the Hon'ble Supreme set aside.

It has been held in para-5 thus: "So far as convictions of these two appellants, as leamed 'sn confirmed t>y the High Court, are concerned, counsel appesnng on behaSf of ffte appeSlants is not s position to point out any error in the order of ttie High Court whereby convictions ofthe appellants have been confirmed. Having gone thmugh the impugned judgment and the records, we also do not find any 'in ground to hold that the High Court was notjusfflied upholding the convictions of the apf^llants. This being the position, we are of the view that >e High Court uphokling conw'ctions has not committed any e/mr of # appeliants. Naw, Uw (fuestion arises in relation !n view of our aforesaid finding that to sentences. ffiese two appeliants were jwenile on the date of alleged occurrenoe and they have ncw attained it would be just and expedient to set aside majority, their sentences and pass an ofder of releasing fhem as they cannot be sent to remand home.

" 'sn In the present appeai also, the appellant has been convicted under Section 302 of the IPC and sentenced to undergo life imprisonment and fine of Rs.lOCX)/-. On enquiry, we find that age 6f the appellant was less than 18 years and as such, he was also entitted to be dealt with in accordance with the Act of 2000. The date of birth of the appellant has been determined as

14.9.1983 and as such, he has now completed almost 26 years. circumstances, following the principles of law laid down in the above cited judgments, we, while upholding the conviction of the appellant under'Section 302 of IPC, set aside the sentence imposed on him by the learned Addt. In these Sessions Judge. In the result, the appeai is partly allowed. Conviction of the appellant under Section 302 of 1PC is uphetd, however, sentence of tife imprisonment and flne of Rs.1,000/- imposed on him is set aside. The appellant be set at liberty forthwith, ifrioLcequired in any other case. — R.N. Chandrakar Judge 's.^sSR^