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PETITIONER: BHOLA BHAGAT ETC.PRABHUNATH PRASADCHANDRA SEN PRASAD & ORS.

       Vs.

RESPONDENT: STATE OF BIHAR

DATE OF JUDGMENT:       24/10/1997

BENCH: A.S. ANAND, K. VENKATASWAMI

ACT:

HEADNOTE:

JUDGMENT:                THE 24TH DAY OF DECEMBER, 1997 Present:                Hon’ble Dr.Justice A.S. Anand                Hon’ble Mr.Justice K.Venkataswami Amrendra Sharan, Adv. for the appellant in Crl.A.No. 1826/96 D.P.Mukherjee, Adv. for the appellant in Crl.A.No.1827/96 V.N.Ganpule, Sr.  Adv. Subodh  Lalit and  M.C.Dhingra, Advs. with him for the appellant in Crl.A.No.1 1828/96 H.L. Aggarwal,  Sr.Adv. and B.B.Singh, Adv. with him for the Respondent.                       J U D G M E N T      The following Judgment of the Court was delivered:                             WITH               CRIMINAL APPEAL NO. 1827 OF 1996                             AND               CRIMINAL APPEAL NO. 1828 OF 1996                       J U D G M E N T DR. A.S.ANAND.J      For an  occurrence which took place at about 11.30 A.M. on 29th  September, 1978,  in the  Bazar in village Barauli, District Gopalganj,  11 accused persons were sent up to face their trial  for offences under Section 302/149/148 IPC. The First Information  Report in  respect of  the occurrence was lodged on  29th September, 1978 at police station Barauli on the statement  of Paras  Nath Choubey  (PW 6) brother of the deceased, recorded  at the  hospital. The learned Additional Sessions Judge vide judgment and order dated 22nd July, 1983 acquitted Mishri  Bhaghat but  convicted  the  remaining  10 accused for offences under Sections 302/149/148 IPC. Each of the 10  accused was  sentenced to  undergo imprisonment  for life for  an offence  under  Section  302/149.  No  separate sentence was  imposed on  any one  of  the  accused  for  on offence under  Section 148 IPC. Against their conviction and sentence, all  the 10  convicts filed three different set of appeals. The  Division Bench of the High Court Vide judgment and order  dated 24th  August, 1995  acquitted Sarwa  Prasad (appellant) No.5  in the  High Court).  The  conviction  and sentence  of   the  remaining   9  convicts   was,  however, maintained. By  Special leave  6 of  the convicts have filed three separate  appeals in  this Court.  Three convicts have

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not filed  any appeals  in this  Court. Three conviction and sentence. All  the three  appeals are being disposed of this common judgment  since they arise out of the common judgment and order  of the courts below.  Prabhunath Prasad has filed Criminal Appeal  No. 1827  of 1996 while Bhola Bhagat is the appellant in Criminal Appeal No. 1826 of 1996, the remaining four convicts have filed Criminal Appeal No. 1828 of 1996.      According to  the prosecution  case, on the fateful day Parasnath Choubey  (PW6) along  with his  brother Ram Naresh Choubey (deceased)  went to  the shop  of Anish Haider (PW5) for purchasing  some cloth.  After making the purchase, when they reached  near the  shop of Jagat Prasad, PW6 saw Mishri Bhagat standing  in  a  lane  near  the  medicine  shop.  He directed the  remaining accused  who were armed with weapons like Dab,  Bhala and Farsa to assault the complainant party. While the first informant PW6 managed to escape, the accused surrounded his  brother and  assaulted him,  as a  result of which Ram Naresh Choubey fell down on the ground. On raising an alarm  a number  of persons  including Jita Manjhi (PW1), Bindeshwari Prasad  (PW3),  Rajendra  Choubey  (PW4),  Anish Haider  (PW5),  Shaukat  Ali  (PW8)  and  Damodar  Choudhary arrived at the scene of occurrence. After the appellants had assaulted the deceased they fled towards the east. PW 6 came near his  brother but  found him  unconscious with  bleeding injuries on  different parts  of his body. He removed him to Barauli hospital  on a  cart. On  intimation being sent from the hospital  to police  station Barauli,  Abdul Jalil (PW9) arrived at  the hospital  and recorded the statement of PW 6 since the  injured was  in an  unconscious state. The injury report of  Ram Naresh Choubey was prepared. On the advice of the Doctor,  the deceased was removed to Gopalganj hospital. PW9 returned  to the police station and drew up a formal FIR for offences  under Section  307 IPC  etc. The investigation was taken  in hand  and site  inspection carried  out. Blood stained earth  was seized  from the  place of occurrence and was subsequently  sent for  chemical examination.  At  about 10.00 P.M.,  the investigating  officer received information that the  injured had succumbed to his injuries in Gopalganj hospital. The  case was  thereupon converted  to  one  under Section 302  IPC. An  inquest was held at Gopalganj hospital the same  day. Thereafter,  the post-mortem was conducted by Dr. Lakhi  Chand Prasad  (PW7). As  many  as  17  antimortem injuries, all  cut wounds,  were found  on the  body of  the deceased. After  close of  the investigation  the appellants were chargesheeted, tried and convicted as already noticed.      At the trial all the witnesses except PW1, PW3, and PW4 turned hostile.  The trial  court did not believe Jita Majhi PW1 but the High Court did not agree with the opinion of the Trial Court  and found  him to  be a  reliable witness.  PW3 Bindeshwari Prasad  was believed both by the Trial Court and the High  Court. He  made a  clear deposition  regarding the part played  by the  appellants and  the manner in which the occurrence had taken place. PW4 Rajendra Choubey, brother of the deceased,  was believed  by the Trail Court but the High Court did  not place  complete reliance  upon his testimony. Even though  Anish Haider  (PW5) had  been declared hostile, both the  trail Court  as well as the High Court scrutinised his testimony  in Faradbeyan also. His evidence connects the appellants with  the crime.  Similarly, Paras  Nath  Choubey (PW6) even  though   had turned hostile has been believed by both the  courts. No  reliance, however,  has been placed on the testimony  of Shaukat  Ali (PW8)  by either  of the  two courts. The  defence of  alibi pleaded  by Mansen Prasad and Dr. Anil  Kumar alias  Tansen, appellants  was not  accepted after critically  examining the  evidence of Mahendra Prasad

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(DW1) and Dr. M.M.Kolay (DW2) by the High Court.      We have  heard  learned  counsel  for  the  parties  at length. We  find that the view taken by both the courts with regard to  the involvement  of the  appellants in  the three appeals in  the commission  of crime of murder of Ram Naresh Choubey on the fateful day has been established beyond every reasonable doubt. Both the courts have carefully appreciated the evidence of witnesses and taken into account the medical evidence and the established enemity between the parties and then recorded  on order  of conviction.  In our  opinion the appreciation of  evidence by  both the  courts is proper and sound. We  are not  persuaded to  take a view different than the one  taken  by  the  courts  below  in  so  far  as  the involvement of  the appellants in the commission of crime is concerned. Their conviction is, therefore, well merited.      There is,  however, one  other aspect of the case which now engages our attention and that pertains to appellant No. 2, Chandra  Sen Prasad,  appellant No.  3, Mansen Prasad and appellant No.10,  Bhola Bhagat - (The number as given to the appellants in the High court)      In  March,   1983,  more   than  for  years  after  the occurrence, when  the statements  of these  appellants  were recorded under  Section   313 Cr.P.C. they gave their age as follows:      Chandra Sen Prasad              - 17 Years      (Appellant No.2)      Mansen Prasad      (Appellant No.3)                - 21 years      Bhola Bhagat      (Appellant No.10)               - 18 Years.      The Trial Court recorded that in its estimation the age of Appellant  No. 2  was 22 years at that time while that of appellant No.  3, 21  years and  appellant No. 10, 18 years. The Trial  Court, however,  did not  give benefit  to  these three appellants of the Bihar Children Act, 1970      In the  High Court  also an  argument that  Chandra Sen Prasad, Mansen  Prasad and  Bhola Bhagat  were  children  as defined in  the Bihar  Children Act, 1970 on the date of the occurrence and  their trial  along with the adult accused by the criminal court was not in accordance with law was raised but was rejected inter alia with the following observation:      "Since, the  alleged occurrence had      taken place  in September  1978 and      the statements  of  the  appellants      had been  recorded in  February and      March, 1983  it was  contended that      even by  the estimate of the age of      the appellants  made by  the court,      all the three appellants were below      18 years  of age  on  the  date  of      occurrence. It  appears that except      for the age given by the appellants      and the  estimate of  the court  at      the time of their examination under      section 313 of the Code of Criminal      Procedure,  there   was  no   other      material   in    support   of   the      appellant  claim   that  they  were      below 18 years of age."      In coming  to the  above  conclusion,  the  High  Court relied upon a judgment of this Court in the case of State of Haryana vs. Balwant Singh 1993, Supp. (1) SCC 409 wherein it has been  observed that  if the  plea that the accused was a child had not been raised before the committal court as well as before  the Trial  Court, the High Court could not merely

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on the  basis of  the age  recorded in  the statement  under Section 313  Cr.P.C. conclude  that  the  respondent  was  a ‘child’  within   the  meaning  of  the  definition  of  the expression under  the Act  on the date of the occurrence, in the  absence   of  any   other  material   to  support  that conclusion.      To us it appears that the approach of the High Court in dealing with  the question  of age of the appellants and the denial of benefit to them of the provisions of both the Acts was not  proper. Technicalities  were allowed  to defeat the benefits of  a socially  oriented legislation like the Bihar Children Act,  1982 and  the Juvenile  Justice Act, 1986. If the High Court had doubts about the correctness of their age as given  by the  appellants and  also as  estimated by  the trial  court,  it  ought  to  have  ordered  an  enquiry  to determine their ages. It should not have brushed aside their plea without such an enquiry.      The Bihar  Children Act, 1982 was already in force when the Juvenile  Justice Act,  1986 was  extended  to  all  the States w.e.f  2.10.1987. Section  32 of the Juvenile Justice Act, 1986 provides:      "Sec.32-Presumption             and      determination of  age, -(1)   Where      it appears to a competent authority      that a  person  brought  before  it      under any of the provisions of this      Act (otherwise than for the purpose      of giving  evidence) is a juvenile,      the competent  authority shall make      due inquiry  as to  the age of that      person and  for that  purpose shall      take  such   evidence  as   may  be      necessary  and   shall   record   a      finding whether  the  person  is  a      juvenile or not, stating his age as      early as may be.      (2)  No   order  of   a   competent      authority shall  be deemed  to have      become  invalid   merely   by   any      subsequent proof that the person in      respect of  whom the order has been      made is not a juvenile, and the age      recorded by the competent authority      to be  the age  of  the  person  so      brought before  it shall,  for  the      purposes of  this Act, be deemed to      be the true age of that person."      This section  casts an  obligation on the court to make due enquiry as to the age of the accused and if necessary by taking evidence  it self  and record  a finding  whether the person is a juvenile or not.      In Gopinath  Ghosh  vs.  State  of  West  Bengal,  1984 (Supp.) SCC  228, an  argument was  raised on  behalf of the appellant therein  for the  first time  in the Supreme Court that on  the date of an offence the appellant was aged below 18 years and was, therefore, a ‘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, this Court framed in issue a trial. In  that case,  this Court framed an issue as to what was the  age of  the appellant on the date of an offence for which 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

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the sides certified his findings that the appellant Gopinath Ghosh was  aged between  16-17 years  on  the  date  of  the offence.  This   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. This 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 Court the observed:      "In   view    of   the   underlying      intendment      and      beneficial      provisions of  that 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 this Court for the      first time to thwart the benefit of      the provisions  being  extended  to      the appellant.  If he was otherwise      entitled to it.             (Emphasis ours)      and then went on to direct:      "The next question is : what should      be the  sequel to our decision? The      appellant has  been in  prison  for      some   years.    Bu   neither   his      antecedents nor  the background  of      his family  are before  us.  If  is      difficult for  us to  gauge how the      juvenile  court  would  have  dealt      with him. Therefore, we direct that      the appellant  be released  on bail      forthwith by the learned Additional      Sessions Judge,  Nadia,"  and  then      proceed  in   accordance  with  law      keeping in  view the  provisions of      the Act.      Again, in  the case  of Bhoop  Ram vs.  State of U.P. ( 1989 ) 3 SCC 1, the only question for consideration before a Bench of  this Court  was whether the appellant who had been convicted and  sentenced along  with certain  adult  accused should have  been treated  as a  child within the meaning of Section 2(4)  of the U.P. Children Act, 1951 and sent to the approved school  for detention  therein till he attained the age of  18 years  instead  of  being  sentenced  to  undergo imprisonment  in  Jail.  The  Court  after  considering  the material on  the record  opined that  the appellant  therein could not have competed 16 years of age on the date when the

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offence was  committed and  held that  the appellant  should have been  dealt with under the U.P. Children Act instead of being sentenced to imprisonment when he was convicted by the Sessions Judge  under various  grounds. Since, the appellant had by  the time  the appeal  was heard by the Supreme Court reached the age of more than 28 years, the 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  the  a      somewhat  similar  situation,  this      Court held  in Jayendra v. State of      U.P. that where an accused had been      wrongly sentenced  to  imprisonment      instead  of   being  treated  as  a      "Child" under  Section 2(4)  of the      U.P. Children  Act and  sent to  an      approved school and the accused had      crossed   the    maximum   age   of      detention in a approved school viz.      18 years, the course to be followed      is to  sustain 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      all the  charges framed against him      but  however   quash  the  sentence      awarded  to   him  and  direct  his      release forthwith."             (Emphasis ours)      A three  Judge bench  of this  Court  in  the  case  of Pradeep Kumar,  vs. State  of U.P.  AIR 1994 SC 104, noticed the following  observations of  the High Court regarding the age of the appellant:      "At  the  time  of  the  occurrence      Pradeep Kumar appellant, aged about      15 years,  was resident  of Railway      Colony,  Naini,  Krishan  Kant  and      Jagdish appellants,  aged about  15      years and  14  years  respectively,      were  residents  of  village  Chaka      P.S.Naini."      At the  time of  granting special leave, two appellants therein produced  school leaving  certificate and  horoscope respectively showing  their ages as 15 years and 13 years at the time  of the  commission of  the offence  and so  far as third appellant  is concerned,  this  Court  asked  for  his medical examination  and on the basis thereof concluded that he was  also a  child at  the relevant  time. The Court then held:      "It   is,    thus,    proved    the      satisfaction of  the Court  that on      the   date   of   occurrence,   the      appellants  had  not  completed  16      years  of  age  and  as  such  they      should have  been dealt with  under      the U.P.  Children Act  instead  of      being sentenced  to imprisonment on      conviction under  Section 302/34 of      the Act.      Since the  appellants are  now aged

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    more than  30 years,  there  is  no      question of  sending  them  to  and      approved  school   under  the  U.P.      Children   Act    for    detention.      Accordingly, while  sustaining  the      conviction of  the appellants under      all the charges framed against the,      we quash  the sentences  awarded to      them  and   direct  their   release      forthwith. The  appeals are  partly      allowed in the above terms."           (Emphasis supplied)      A Full  Bench of  the Patna  High Court  in the case of Krishna Bhagwan  vs. State  of Bihar,  AIR 1989  Patna  217, considered the question relating to the determination of the age of  the accused  the belated  raising of  that plea  and opined that though the normal rule is that a pleas unless it goes to  the very  root of  the jurisdiction  should not  be allowed to  be taken  at the appellate stage especially when it requires  the investigation into a question of fact but a plea that  accused in  question was  a  "child"  within  the meaning of the Act can be entertained at the appellate stage also and  should not be overlook on technical grounds. After noticing the  provisions of the Bihar Children Act, 1982 and the Juvenile  Justice Act, 1986, the Full Bench of the Patna High Court  opined, taking  into consideration  the aim  and intention of  the two  Acts, that  the  application  of  the provisions of  the Acts  should not  be denied  to  offender whereby the  time  the  trial  commenced  or  concluded  the accused had  ceased to  be a  juvenile within the meaning of the Act. The Court then laid down the procedure which should be flowed  when a  plea is  raised to  the effect  that  the accused on the date of the offence was a child and held that inquiry into  that aspect  should be  conducted and  on  the basis of  the evidence  led at the inquiry, the court should record a finding whether or not on the date of commission of the offence, the accused was a ‘child’ within the meaning of the Act.      The Judgment  of the  two Judge  Bench of this Court in the case  of  State of Haryana Vs. Balwant Singh, 1993 Supp. (1) SCC 409, which has been relied upon by the High Court is clearly distinguishable. The bench in that case recorded:      "Admittedly,  neither   before  the      committal  court   nor  before  the      trial court,  no plea was raised on      behalf of  the respondent  that  he      was a  child and that he should not      have   been    committed   by   the      Magistrate and  thereafter tried by      the session court and that he ought      to have been dealt with only by the      court of  Juveniles. When it is not      the case  of the respondent that he      was  a   child  both   before   the      committal court  as well  as before      the  trial   court,  it   is   very      surprising  that  the  High  Court,      based merely  on the  entry made in      Section  313  statement  mentioning      the age of the respondent as 17 has      concluded that the respondent was a      ’child’ within  the  definition  of      the  Act   on  the   date  of   the      occurrence."      In the  instant case, however, the plea had been raised

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both in  the Trial  Court as  well as  in the High Court and both the  Courts even  considered the  plea but  denied  the benefit to the appellants for different reasons which do not bear scrutiny.  That apart,  the earlier  judgments of  this Court reported  in 1984  Suppl. SCC 228 (Supra) and 1989 (3) SCC 1  (Supra), were  not even noticed the view expressed in Gopinath Ghosh’s  case and  Bhoop Ram’s case (supra) receive support from  the three  Judge Bench judgment in the case of Pradeep Kumar  vs. State  of U.P.  (supra),  the  appellants cannot be denied the benefit of the provisions of the Act on the basis of balwant Singh’s case (supra).      The Correctness  of the estimate of age as given by the trial court  was neither doubted nor questioned by the State either in the High Court or in this Court. The parties have, therefore, accepted  the correctness  of the estimate of age of the  three  appellants  as  given  by  the  trial  court. Therefore, these  three appellants  should not be denied the benefit of the provisions of a socially progressive statute. In our considered opinion, since in the plea had been raised in the  High  Court  and  because  the  correctness  of  the estimate of  their age  has not  been assailed,  it would be fair to  assume that on the date of the offence, each one of the appellants  squarely fell  within the  definition of the expression  ’child’.   We  are   under  these  circumstances reluctant to  ignore and  overlook the beneficial provisions of the  Acts on  the technical ground that there is no other supporting material  to support  the estimate of ages of the appellants  as   given  by   the  trial  court,  though  the correctness of  that estimate  has not  been  put  in  issue before any  forum. Following  the course adopted in Gopinath Ghosh, Bhoop  Ram and  Pradeep Kumar’s  case  (supra)  while sustaining the  conviction of  the appellants  under all the charges quash the sentences awarded to them.      The appellants  Chandra Sen  Prasad, Mansen  Prasad and Bhola Bhagat,  shall, therefore,  be released  from  custody forthwith, if  not required in any other case. Their appeals succeed  to  the  extent  indicated  above  and  are  partly allowed.      The conviction and sentence of the remaining appellants is maintained and their appeals are hereby dismissed.      Before parting with this Judgment, we would like to re- emphasise that when a plea is raised on behalf of an accused that he  was a  "child" within the meaning of the definition of the  expression under  the Act, it becomes obligatory for the court,  in case  it entertains  any  doubt  the  age  as claimed by  that accused,  to hold  in  inquiry  itself  for determination of the question of age of the accused or cause an enquiry  to be held and seek a report regarding the same, if necessary, by asking the parties to lead evidence in that regard.  Keeping  in  view  the  beneficial  nature  of  the socially oriented  legislation, it  is an  obligation of the court where  such a plea is raised to examine that plea with care and  it cannot  fold its  hands and without returning a positive finding regarding the plea, deny the benefit of the provisions to an accused. The court must hold an enquiry and return a finding regarding the age, one way or the other. We expect the  High Court  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 the  plea, they  must a rule, conduct an

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inquiry by  giving opportunity  t the  parties to  establish their respective  claims and  return a finding regarding the age of  the concerned accused and then deal with the case in the manner provided by law.