High Court · 2012

Amitava Roy, J Being aggrieved by their conviction under sections 341/32/324/302/34 of the Indi an Penal Code (for short hereafter referred to as the Code) by the judgment and order dated 27.02.2007, passed by the learned Sessions Judge, Golaghat, in Sessi on Case No.139/2003, whereby, they had been sentenced to undergo rigorous impris onment for life for the offence under section 302/34 of the IPC and to pay a fin e of Rs. 3000/-, in default thereof, to suffer simple imprisonment for three mon ths, they seek redress in the present appeal.

02. We have heard Mr. TJ Mahanta learned counsel for the accused-app ellants and Mr. KA Mazumdar, learned Addl. Public Prosecutor, Assam for the Stat e respondent.

03. On the basis of an ejahar dated 11.03.2003 by one Shri Samiran D as, Gaon Bura, alleging that the accused-appellants had, in a body, attacked Dha niram Das (since deceased) with sharp cutting weapon and that he (deceased) had later succumbed to the injuries sustained, Dergaon Police Station G.R. Case No.2 05/2003, under sections 341/326/324/302/34 of the IPC was registered and they ha ving denied the charge, were made to stand trial. The prosecution examined 12 witnesses, including the Investigating Officer and t he Doctor, who had performed the post mortem examination on the dead body. The a ccused-appellants were, thereafter, examined under section 313 Cr.P.C. They also examined two witnesses in defence. The impugned decision followed.

04. As the evidence adduced by the prosecution would reveal, PW 1, S hri Samiran Das, PW 2, Shri Mohanlal, PW 3, Tosheswar Das, PW 4, Liteswar Das an d PW 6, Arun Kumar did claim to be the eye-witnesses of the incident and in cour se of their evidence, testified about the involvement of the accused-appellants in the acts of assault leading, amongst others to the death of Dhaniram Das. The evidence of PW 8, Shymal Madhab Sarma, the doctor, who performed the autopsy, d iscloses, inter alia five incised wounds on the neck and the head of the dead bo dy, which according to him, were the cause of death. The evidence of Dr. Gunatta m Borah, PW 9, was offered by the prosecution to prove the injuries to PW 3 & PW

4. Mr. Mahanta, at the outset, has urged that the appellant No.2, S 05. ri Pranabjyoti Das, S/o. Lt. Saruram Das was, on the date of the occurrence i.e. 11.03.2003, a juvenile under the Juvenile Justice (Care and Protection of Child ren) Act, 2000 (for short hereinafter referred to as the Act) and, thus the tria l conducted against him under the Criminal Procedure Code is non est in law and on that ground alone, the impugned judgment and order is liable to be adjudged a s invalid. Without prejudice to this plea, the learned counsel has further argue d that as the examination of the appellants under section 313 Cr.P.C has been in gross contravention of the letter and spirit thereof, their conviction is liabl e to be interfered with on this count alone. That Sri Pranabjyoti Das was a juve nile on the date of the occurrence i.e. 11.03.2003, aged less than 18 years, is apparent from the proceedings of 313 Cr.P.C qua him, he insisted.

06. Mr. Mazumdar, in reply, has sought to contend that as the plea o f juvenility had not been taken by the accused-appellants at any earlier point o f time, the same ought not to be entertained at this belated stage. According to him, the questions put to the accused-appellants, having regard to the evidence on record, are in adequate compliance of the prescription of section 313 Cr.P.C and, therefore, the plea to the contrary is untenable.

07. Having regard to the vital bearing of the aforementioned content ions raised on behalf of the appellants, we consider it expedient to examine the same and record our decision in connection therewith before proceeding further, if need be, with the exercise of analyzing the evidence on record for disposal of the appeal otherwise on merits. In terms of section 7 A of the Act, the plea of juvenility can b 08. e raised before any Court and ought to be recognized at any stage, even after th e final disposal of the case and has to be determined in terms of the provisions of the said enactment and the rules framed thereunder. In view of this unambigu ous enjoinment of the Act, the plea to the contrary raised on behalf of the Stat e does not appeal to us.

09. A bare perusal of the form pertaining to the examination of the appellant, Sri Pranabjyoti Das under section 313 Cr.P.C discloses his age as rec oded therein to be 18 years on 25.10.2006. It is, thus apparent on the face of t he record that going by this date, if the same has been recorded correctly, he w ould definitely be a juvenile, as defined in section 2 (k) of the Act, on the da te of the incident i.e. 11.03.2003. Consequentially, in view of the mandatory pr ovisions of the Act to deal with a juvenile in conflict with law within the mean ing of section 2 (l), we are of the unhesitant opinion that the claim of juvenil ity of the appellant, Sri Pranabjyoti Das ought to be inquired into as per the p rovisions of the Act and Rules famed thereunder.

10. A close scrutiny of the proceedings of 313 Cr.P.C leaves no mann er of doubt that in course thereof, the incriminating circumstances appearing ag ainst the appellants in the evidence adduced by the prosecution had not been bro ught to their notice so as to enable them to explain the same. The learned trial court, in our opinion, casually and perfunctorily completed the formalities wit hout being alive to the underlying purpose of the said legal provision. The Apex Court in Narandra Singh & Anr. Vs. State of MP, (2004) 10 SCC 699, reit erated the adverse impact of the omission to confront an accused with the incrim inating circumstances appearing in the evidence in course of examination under s ection 313 Cr.P.C resulting in prejudice. In this decision, the omission on the part of the learned trial court was taken to be one of the decisive factors to i mpel the Hon’ble Apex Court to interfere with the conviction of the appellants.

11. In the case in hand, none of the incriminating circumstances con tained in the evidence of PW 1, PW 2, PW 3, PW 4 and PW 6 has been laid with the appellants so as to elicit their explanation with regard thereto. Having regard to the testimony of these witnesses, there is no manner of doubt that this omis sion on the part of the learned trial court in examining the appellants under se ction 313 Cr.P.C has resulted in grave prejudice to them. The fact that they had been convicted of the charge levelled against them has further compounded the s ituation. In the above view of the matter, we are not inclined, in the facts and circumsta nces of the case, to sustain the pleas raised on behalf of the respondent State. As a corollary, the impugned judgment and order cannot be sustained and is, thu s interfered with. The appeal is allowed.

12. The case, as a consequence, stands remanded to the Court of the learned District and Sessions Judge, Golaghat. The learned court below would, at the first instance, examine the tenability or otherwise of the claim of juvenil ity of the appellant, Sri Pranabjyoti Das in terms of the Act and the Rules fram ed thereunder and record a finding with regard thereto. In case, Sri Pranabjyoti Das is held not to be a juvenile on the date of the occurrence, the learned tri al court would proceed with the trial of the session’s case from the stage of ex amination of the appellants under section 313 Cr.P.C and render it’s decision on merits. In case, however, Sri Pranabjyoti Das is held to be a juvenile, then th e learned trial court would, first, deal with him as mandated by the Act and the Rules and proceed with the trial of the session’s case from the stage of examin ation of the remaining appellants under section 313 Cr.P.C and record its final verdict vis-a-vis the charges against them. In view of the interference with the impugned judgment and order, the appellants are hereby ordered to be set at liberty forthwith. However, having regard to th e grounds on which the impugned judgment and order has been set aside, the learn ed trial court is left at liberty to pass appropriate order(s) as deemed fit and proper on the aspect of bail depending on the attendant facts and circumstances . In any view of the matter, the follow up steps, as indicated hereinabove, woul d be taken as expeditiously as possible.