Ashok Kumar vs State of U.P.

R.K. Rastogi, J.—This is an appeal against the judgment and order dated 10.8.1982, passed by Sri Pramod Kumar Sarin, then learned 1st Addl. Sessions Judge , Etawah in S.T. No. 150 of 1981, State v. Ashok Kumar S.T. No. 150 of 1981convicting the accused-Appellant u/s 302, I.P.C. and sentencing him to life imprisonment.

The facts relevant for disposal of this appeal are that on 24.12.1980 Ram Bharose Lal lodged a F.I.R. at the Police Station Dibiyapur district Etawah at 5.15 p.m. with these allegations that on the aforesaid date his son Satish Kumar alias Harish had gone to fetch his niece Suman who was a student of High School . The school closed at about 3.15 p.m. and Suman came out of the school. She was being teased by some boys who were also studying in the same school. Accused Ashok Kumar had also joined them. Satish Kumar prohibited them from doing so, then Ashok gave a knife blow to Satish. Satish tried to protect himself by catching him, and he received injury upon his hand but he could not snatch that knife. In the meantime Ashok gave a strong knife blow upon his stomach and the entire blade of the knife entered the stomach and got entangled there. Thereafter Girish who was also a friend of Ashok pulled out the knife. This incident was witnessed by Hridai Narayan, Kishori Lal, Raghunandan and Mewa Lal, Suman etc. Suman narrated this incident to the informant Ram Bharose Lal and she also told that Kishori Lal etc. had taken Satish Kumar to the hospital. Then he went to the hospital where Harish narrated the entire incident to him before Dr. Subhash. The Doctor after providing first aid to him referred him for further treatment to the Government Hospital but when Harish was being taken to the hospital he died in the way at about 4.30 p.m. Then Ram Bharose Lal went to the police station to lodge the F.I.R. On the basis of above report, the police registered a case against the accused u/s 302, I.P.C.

The accused was charged u/s 302, I.P.C. He pleaded not guilty and claimed trial.

The trial court after taking evidence and after hearing the parties came to the conclusion that the charge u/s 302, I.P.C. was sufficiently proved against the accused . He, therefore, convicted the accused-Appellant u/s 302, I.P.C. providing an opportunity of being heard on the point of sentence. Then the accused took a plea that he was child on the date of the incident and so he should be given benefit of the Children Act. Then the learned Judge took evidence of both the parties on the point of age of the accused-Appellant. The prosecution produced evidence to this effect that the date of birth of the accused-Appellant was 7.7.1964 as entered in the school record as well as in his High School certificate. On the other hand the accused produced evidence to this effect that his date of birth was 1.6.1965. After taking evidence of both the parties the trial court was of the view that the evidence produced by the prosecution that the date of birth of the accused was 7.7.64 was more reliable and so he held that the date of birth of the accused was 7.7.64. He further held that according to this date of birth, the accused had completed 16 years of age on 7.7.80, and since the incident had taken place on 24.12.80, he could not be treated to be a child on that date under the provision of the Children Act because under the said Act, a boy upto the age of 16 years only can be deemed to be a child. He, therefore, held that since the provisions of Children Act were not applicable to the case of the Appellant as he had ceased to be a juvenile on the date of the incident, he was liable to be sentenced u/s 302, I.P.C. He, therefore, imposed life imprisonment upon the accused-Appellant. Being aggrieved by the judgment and order of the Court below, the accused-Appellant has filed this appeal.

When this appeal was taken up for hearing of argument on 13.8.08 Mr. P. N. Misra, learned Counsel for the Appellant made only one submission before us. He submitted that even if the date 7.7.64 as held by the trial court be taken to be the true date of birth of the Appellant, the Appellant is entitled to the benefit of the provision of the Juvenile Justice (Care and Protection of Children) Act , 2000 (hereinafter referred to as Juvenile Justice Act, 2000). In this connection he referred to Section 20 of the above Act which has been amended by Act No. 33 of 2006 and which now runs as under:

Special provision in respect of pending cases.--Notwith-standing 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 (1) 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.

It may be mentioned that in the Juvenile Justice Act as passed in the year 2000 the first para only of Section 20 was in the statute book. The second and third paras containing the proviso and the Explanation were added by the amending Act No. 33 of 2006. This amending Act received assent of His Excellency the President of India on 22.8.2006 and it was published in the Gazette of India, Ext. Part II, S. 1, dated 23.8.2006.

Mr. P. N. Mishra contended before us that in view of the Explanation added to Section 20 of the Juvenile Justice Act the provisions of this Act shall be applicable to all the pending cases including trial, revision, appeal or any other criminal proceedings in respect of a juvenile in conflict with law, in any Court and the determination of juvenility of such a juvenile shall be in terms of Clause (1) 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.

It is to be seen that Clause (l) of Section 2 referred to in the above Explanation defines a "Juvenile in conflict with law" which runs as under:

Juvenile in conflict with law" means a juvenile who is alleged to have committed an offence and has not completed eighteenth years of age as on the date of commission of such offence.

It may be mentioned that under the Children Act, 1960 the word "child" was defined in Section 2(e) of the said Act which runs as under:

(e) "child" means a boy who has not attained the age of sixteen years or a girl who has not attained the age of eighteen years.

The same definition was adopted in the Juvenile Justice Act, 1986 and in Section 2(h) "juvenile" was defined as under:

(h) "juvenile" means a boy who has not attained the age of sixteen years or a girl who has not attained the age of eighteen years.

In this way the position under the aforesaid Acts was that a boy who had not attained the age of 16 years was treated to be a child/juvenile, and a girl who had not attained the age of 18 years was treated to be a child/ juvenile.

This provision of age was amended by the Juvenile Justice (Care and Protection of Children) Act, 2000 and the terms "juvenile" and "child" were defined in Section 2(k) of the Act which runs as under:

2 (k) "juvenile" or "child'''' means a person who has not completed eighteenth years of age.

In this way the distinction drawn in the aforesaid earlier two Acts between the male and the female child was removed under the above Juvenile Justice Act of 2000 and every male and female child, who had not completed 18 years of age, was held to be a "juvenile" under this Act. This Act further defines "juvenile in conflict with law" in Section 2(l) which has been quoted above and it means "juvenile" who is alleged to have committed an offence and has not completed 18 years of age as on the date of commission of offence. Section 20 of the Juvenile Justice Act, 2000 embodied a special provision in respect of pending cases and interpreting this provision of the original Section 20, the Hon''b1e Apex Court in the case of Pratap Singh v. State of Jharkhand and Anr. 2005 (1) UP CR 555: 2005 (1) ACR 819 (SC) held that the provision of Section 20 of the Act, 2000 are applicable to those pending cases where a person had ceased to be a juvenile under the 1986 Act but had not yet crossed the age of 18 years on 1.4.2001 which is date of enforcement of the new Act and if the Court finds that the juvenile had committed an offence, it shall record such finding and instead of passing any sentence in respect of the juvenile, shall forward the juvenile to the Board who shall pass orders in respect of that juvenile. It was further held that in view of the aforesaid interpretation of Section 20 a person who had crossed the age of 18 years before commencement of the Act of 2000, shall not be entitled to any benefit of the provisions of this Act.

Learned A.G.A. submitted that in view of the above ruling of the Hon''ble Supreme Court since in the present case, the Appellant had crossed the age of 18 years before commencement of the Juvenile Justice Act, 2000, he is not entitled to the benefit of the above Act.

Mr. P. N. Mishra contended before us that the Hon''ble Apex Court in the case of Pratap Singh (supra) has considered the legal position as stood on that date. He submitted that at the time of the judgment in Pratap Singh (supra) which was decided in year 2005 , the amending Act No. 33 of 2006 had not come into force. He submitted that after enforcement of the amending Act No. 33 of 2006 the benefit of Juvenile Justice Act, 2000 shall be available, under the Explanation to Section 20, to all those persons who had not completed the age of 18 years on the date of the incident and whose cases including appeal or revision were pending in the Courts on the date of enforcement of the Act of 2000 even if he had ceased to be juvenile on that date.

Learned A.G.A. in reply cited before us the ruling of Hon''ble Supreme Court in Ranjit Singh Vs. State of Haryana, . In this case the age of the accused was 17 years at the time of occurrence which had taken place on 1.8.1993 and so he was not awarded benefit of the provision of Juvenile Justice Act, 1986 because he had exceeded the age of 16 years. When the Juvenile Justice (Care and Protection of Children) Act, 2000 came into force he had exceeded the age of 18 years and so he was not entitled to any benefit of the new Act in view of the ruling of Hon''ble Apex Court in Pratap Singh v. State of Jharkhand 2005 (1) UP CR 555: 2005 (1) ACR 819 (SC). However, it was argued on the basis of the Explanation added to Section 20 of the new Act of 2000 that since the Appellant had not completed the age of 18 years on the date of the incident, he was entitled to the benefit of the provision of the new Act of the year 2000 in view of this Explanation added to Section 20 of the Act.

The Hon''ble Supreme Court rejected the above contention of the Appellant and dismissed the appeal making the following observations in paras 9 and 13 of the judgment in Ranjit Singh (supra):

Section 20 of the Act does not in any way help the Appellant. It deals with cases where proceedings related to a period when the 1986 Act was in force. What Section 20 provides is that the proceedings shall continue as if the Act (i.e., the Act of 2000) is not in existence. To put it differently, even if the definition of "Juvenile" has undergone a change by fixing the age to be 18 years the proceedings shall continue on the footing that the accused was a juvenile under the 1986 Act. What the Appellant contends is to reverse the situation, i.e., take the applicable age to be 18 years. That is not legally permissible.

So far as the submission of the learned Counsel in regard to the applicability of the 2000 Act is concerned, it is not in dispute that the Appellant on the date of occurrence had completed sixteen years of age. The offence having been committeed on 16.12.1989, the 2000 Act has no application. In terms of the Juvenile Justice Act, 1986, "Juvenile" was defined to mean ''a boy who had not attained the age of sixteen years or a girl who had not attained the age of eigthteen years.

In view of the legal position laid down by the Hon''ble Apex Court in the above ruling, the Appellant in the present appeal also cannot get any benefit of the Explanation added to Section 20 of the Act and he cannot get any benefit of the provision of the Juvenile Justice Act, 2000 and his case is to be decided on the basis of the old Juvenile Justice Act, 1986 under which he is not entitled to any benefit.

Learned Counsel for the Appellant further submitted that the age of the Appellant was actually less than 16 years on the date of the incident and the Court below had erroneously recorded a finding that he had exceeded the age of 16 years. We have gone through the evidence on the point and we do not find any infirmity in the finding of the trial court that the Appellant had crossed the age of 16 years on the date of the incident and so he was not entitled to the benefit of the Juvenile Justice Act, 1986.

Learned Counsel for the Appellant also challenged the finding recorded by the trial court regarding commission of offence by the accused-Appellant. We have gone through the entire evidence. The evidence led by the prosecution on the point is trustworthy and we do not find any infirmity in it. The prosecution has sufficiently proved its case against the accused beyond all reasonable doubts. We do not find any illegality in the findings of fact recorded by the trial court and hold that the charge u/s 302, I.P.C. was sufficiently proved against the Appellant. Thus, the appeal flied by the Appellant has got no force and it is liable to be dismissed. It is accordingly dismissed and the judgment of the trial court convicting the Appellant u/s 302, I.P.C. and sentencing him to life imprisonment are hereby confirmed.