Narendra and Another vs State of M.P. (Now C.G.)

Goutam Bhaduri, J.—This is an appeal against the judgment and order dated 26/04/1996 passed by the Additional Sessions Judge, Jashpur Nagar, District Raigarh, in Sessions Trial No. 13/96 whereby the appellants have been convicted u/s 342 of IPC and have been awarded sentence of RI for 5 months to each, u/s 366 of IPC, appellants have been awarded sentence of RI for 5 years to each and fine of Rs. 1000/-, in default of payment of fine, to undergo SI for 3 months to each and u/s 376(2)(g) of IPC, appellants have been awarded sentence of RI for 10 years and fine of Rs. 5,000/-, in default of payment of fine, to undergo SI for one year to each. In this matter on an application filed by the appellants, on 9/05/2013 this court has directed for enquiry to be made u/s 7(A) whereby claim of juvenility was raised before the court. The application was filed under Juvenile Justice (Care and Protection of Children) Act, 2000. On the basis of such order, an enquiry was made by the District and Sessions Judge, Jashpur. The learned Sessions Judge, Jashpur made a detailed enquiry and called for the original record of appellants Narendra Gupta and Sanjay Kumar Gupta. In order to ascertain the age, the original school register were called for i.e. of Government Higher Secondary, School, Mahadevdand and Boys J.E. Middle School, Musgutri. The said certificate purports the date of birth of Narendra Gupta to be that of 30/11/1978 and that of Sanjay Kumar Gupta to be 6/10/1978. Such certificates were examined and detail enquiry was made. After enquiry, court came to a conclusion that on the date of incident i.e. 4/10/1995, Narendra Gupta was 16 years, 10 months and 5 days while Sanjay Kumar Gupta was 16 years, 11 months and 29 days. The learned court below while making enquiry also made enquiry with respect to the school register which was produced by the Principal of the School and the Head Master of the school respectively.

The learned counsel for the appellants do not challenge the finding of conviction and submits that the finding of committing of offence is correct by the learned court below. The State counsel also agrees to the same.

Learned Advocate for the appellants placed his reliance in the matter of Dharambir Vs. State (NCT of Delhi) and Another, , wherein in para. 7 the Hon''ble Court has held as under:--

Before adverting to the question, we may note that the issue with regard to the date, relevant for determining the applicability of either of the two Acts, insofar as the age of the accused, who claims to be a juvenile/child, is concerned, is no longer res integra. On account of divergence of views on the point in Umesh Chandra Vs. State of Rajasthan, and Arnit Das Vs. State of Bihar, , the matter was referred to the Constitution Bench in Pratap Singh Vs. State of Jharkhand and Another, . Affirming the view taken by a Bench of three Judges in Umesh Chandra Case, the Constitution Bench held that the relevant date for determining the age of the accused, who claims to be a juvenile/child, would be the date on which the offence has been committed and not the date when he is produced before the authority or in the court.

Thereafter, the Hon''ble Supreme Court further in the matter of Babla @ Dinesh Vs. State of Uttarakhand, , has held thus in para 6 as under:--

We have heard the learned counsel for the parties to the lis. We have also carefully perused the judgment and order Naresh v. State, Criminal Appeal No. 1481 of 2001, decided on 21/07/2009 (Utt) passed by the High Court. We are of the opinion that the High Court has erred in dismissing the appeal on the ground that no evidence was adduced and no suggestion was made to the witnesses regarding juvenility of the appellant during the trial. In our opinion, the issue of raising the plea for determination of juvenility for the first time at the appellate stage is no more res integra. This Court in Lakhan Lal Vs. State of Bihar, , has allowed such plea raised before this Court for the first time and, taking note of its previous decisions on this point, has observed thus: (SCC pp. 256-57, para. 21)

The fact remains that the issue as to whether the appellants were juvenile did not come up for consideration for whatever reason, before the courts below. The question is whether the same could be considered by this Court at this stage of the proceedings. A somewhat similar situation had arisen in Umesh Singh and Another Vs. State of Bihar, wherein this Court relying upon the earlier decisions in Bhola Bhagat Vs. State of Bihar, , Gopinath Ghosh Vs. The State of West Bengal, and Bhoop Ram Vs. State of U.P., while sustaining the conviction of the appellant therein under all the charges, held that the sentences awarded to them need to be set aside. It was also a case where the appellant therein was aged below 18 years and was a child for the purposes of the Bihar Children Act, 1970 on the date of the occurrence. The relevant paragraph reads as under ( Umesh Singh and Another Vs. State of Bihar, ):

So far as Arvind Singh, appellant in Criminal Appeal No. 659 of 1999 is concerned, his case stands on a different footing. On the evidence on record, the learned counsel for the appellant was not in a position to point out any infirmity in the conviction recorded by the trial court as affirmed by the appellate court. The only contention put forward before the court is that the appellant is born on 1-1-1967 while the date of the incident is 14-12-1980 and on that date he was hardly 13 years old. We called for a report of experts being placed before the court as to the age of the appellant, Arvind Singh. The report made to the court clearly indicates that on the date of the incident he may be 13 years old. This fact is also supported by the school certificate as well as the matriculation certificate produced before this Court which indicate that his date of birth is 1-1-1967. On this basis, the contention put forward before the court is that although the appellant is aged below 18 years and is a child for the purpose of the Bihar Children Act, 1970 on the date of the occurrence, his trial having been conducted along with the other accused who are not children is not in accordance with law. However, this contention had not been raised either before the trial court or before the High Court. In such circumstances, this Court in Bhola Bhagat Vs. State of Bihar, following the earlier decisions in Gopinath Ghosh Vs. The State of West Bengal, and Bhoop Ram Vs. State of U.P., and Pradeep Kumar, Krishan Kant and Jagdish Vs. State of U.P., while sustaining the conviction of the appellant under all the charges, held that the sentences awarded to them need to be set aside. In view of the exhaustive discussion of the law on the matter in Bhola Bhagat Vs. State of Bihar, , we are obviated of the duty to examine the same but following the same, with respect, we pass similar orders in the present case. Conviction of the appellant Arvind Singh is confirmed but the sentence imposed upon him stands set aside. He is, therefore, set at liberty, if not required in any other case.

We are in respectful agreement with the view expressed by this Court in the aforesaid decision.

Therefore, this is not in doubt that the appellants were juvenile on the date of offence. In the instant case as per information furnished, the appellants are now aged about 35 years. Keeping in view age of the appellants, it may not be conducive to the environment in the special home and to the interest of other juveniles housed in the special home, to refer them to the Board for passing orders for sending the appellants to a special home or for keeping them at some other place of safety for the remaining period of sentence, the maximum period for which they can now be kept in either of the two places.

Appellants have undergone the actual period of approximately about a year. Accordingly, while sustaining the conviction of the appellants for the aforestated offence, the sentences awarded to them is quashed. It is stated that the appellants are on bail. Their bail bonds shall continue for a period of six months from today. The appeal succeeds partly to the extent indicated above.