Babban vs State of U.P.

K.D. Shahi, J.—This appeal has been preferred by appellant Babban against the judgment an a order dated 20101981 passed by Sri J.S. Mishra, the then 1st Additional Sessions Judge, Basti in Sessions "Trial No. 62 of 1980 (State v. Babban), whereby the appellant has been convicted under Section 307, IPC and sentenced to under go (five) years ''RI,

The brief facts of the case are that Chhotkan (complainant) lodge a report on 14ll1976atabout 1130 a.m. at police station Rudhauli, district Basti with the allegations that on 14111976 at about 11.00 a.m. accused Babban has assaulted his (Chhotkan) wife Smt. Dhanpati by knife while she was cutting grass in the plot of one Govind.

The prosecution examined Chhotkan (PW1) informant of the case, Smt. Dhanpati (PW2) the victim and Jamnuna Prasad (PW3), Kanhai (PW4) and Sri Govind (PW5) as eyewitnesses of the case. On appreciation of their statements, the learned Sessions Judge convicted and sentenced the appellant. In this appeal the appellant was contested on the ground that the appellant was a juvenile on the date of alleged offence and he could not have been sent to jail.

The offence is said to have been committed in the year 1976, 23 years have passed. In his statement under Section 313, Cr PC the appellant staled his age as 19 years on the date of his statement recorded under Section 313, Cr PC i.e. on 13101981. In 1976, he must have been of 14 years. However, his age was not at all challenged. Not only this, in his statement Chhotkan, the complainant has specifically admitted that the age of the accused at present i.e. on 2261981 was 18 years, therefore, on the date of commission of offence in 1976 his age must have been 13/14 years. Thus, not only from the statement of the accused but also from the evidence of the prosecution it is clear that appellant was hardly of 14 year son the date of occurrence.

This plea does not appear to have been taken at the time of the trial but the learned Counsel for the appellant referred that this plea can be taken at the time of appeal as well.

In the ruling repotted in Bhola Bhagar and others v. State of Bihar, 1998 UP Cr R 484, (Cr. Appeal Nos. 1826 and 1828 of 1996, decided on 24101997), it has been held that if the accused was a child on the date of occurrence and the Court had doubt, inquiry should have been done after affording an opportunity, benefits of Children Act should not be refused on any technical grounds. There is no question of inquiry in this case because such a plea was not raised in the lower Court and today after 23 years no fruitful purpose would be served by makingan enquiry in this appeal. However, in the above said ruling the plea was raised in the lower Court and on appeal the High Court also rejected the plea of the appellants. In Gomnath Ghosh v. State of West Bengal, 1984 (21) ACC 12 (SC), an argument was raised on behalf of the appellant therein for the first time in the Supreme Court that on the date of offence the appellant was aged below 18 years and was, therefore, a if child" within the meaning of the expression "child" as contained in the West Bengal Children Act, 1959 and therefore, the Court had no jurisdiction to sentence him to suffer imprisonment, after holding a trial. In that case, the Court framed an issue as to what was the age of the appellant on the date of the offence for which he had been tried and convicted and remitted the issue to the learned Sessions Judge Nadia to return a finding on that question. The learned Sessions Judge after hearing both the sides certified his findings that the appellant Gopinath Ghosh was aged between 1617 years on the date of the offence. The Supreme Court then after referring to various provisions of the Act opined that Section 24 of the Act takes away the jurisdiction of the Court to impose a sentence of imprisonment, unless the case falls under the proviso and that Section 25 of the Act forbids any trial of a juvenile delinquent and that only an inquiry can be held in his case in accordance with the provisions of the Code of Criminal Procedure, for the trial of a summons case. The Court noticed that unfortunately the appellant had never questioned the jurisdiction of the Sessions Court, which tried him for the offence. Nor was any such plea raised in the appeal against his conviction and sentence in the High Court. It was for the first time that the contention was raised before the Supreme Court. The Supreme Court held that:

"In view of the underlying intendment and beneficial provisions of the Act read with clause (f) of Article 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 and 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 his Court for the first time to thwart the benefit of the provision being extended to the appellant, if he was otherwise entitled to it."

A ruling reported in Bhoop Ram v. State of UP, 1989 (26) ACC 285, has also been placed. In this case, learned Sessions Judge had convicted the child (appellant) and the appellant had by the time the appeal was heard by the Supreme Court, reached the age of more than 28 years. The Supreme 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 some what similar situation, this Court held in Jayendra .State of V.R, 1981(4) SCC 149: 1981 SCC (Cri) 809, that where an accused had been wrongly sentenced to imprisdnment instead of being treated as a "child" under Section 2 (4) of the UP. 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 tosustain 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 ail the charges framed against him but however, quash the sentence awarded to him and direct his release forthwith."

In the ruling reported in Pradeep Kumar v. State of UP,, 1995 Supp. (4) SCC 419: 1995 SCC (Cri) 395: AIR 1994 SC 104, a three Judge Bench of the Supreme Court noticed the observation with regard to the ace of the appellant, in which it has been held that "at the time when Supreme Court granted Special Leave both the convicts have attained more than 30 years age." it was held by the Supreme Court that there was 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, the Supreme Court quashed the sentences awarded to them and directed their release forthwith.

In the ruling reported in the case of Bhola Bhagat v. State of Bihar. It was further directed by the Supreme Court.

"We expect the High Courts and subordinate Courts to deal with such cases with more sensitivity, as otherwise the object of the Acts would be frustrated and the effort of the legislature to reform the delinquent child and reclaim him as a useful member of the society would be frustrated. The High Courts may issue administrative directions to the subordinate Courts that whenever such a plea is raised before them and they entertain any reasonable doubt about the correctness of plea, they must as a rule, conduct an inquiry by giving opportunity to the parties to establish their respective claims and return a finding regarding the age of the accused concerned and then deal with the case in the manner provided bylaw."

In this particular case, the learned Counsel for the appellant did not challenge the conviction on merits. I have scrutinised the evidence. I am of the view that there is no reason to differ with the findings recorded by the learned Sessions Judge. Injury No, 3 was dangerous to life and even intestine, was coming out. The appellant was rightly convicted under Section 307, IPC. As he was a child at the date of the occurrence he could not have been sentenced to jail and, therefore, on the strength of the above rulings this Court has to confirm the conviction but to quash the sentence.

11, The appeal is partly allowed. While confirming the conviction of appellant Babban under Section 307, IPC his sentence of five years is hereby quashed. The appeal is, accordingly, allowed to this extent. The appellant is on bail. He need not surrender before the Court below. The bail bonds arc cancelled and the sureties are discharged. Appeal partly allowed.