Rahatjan vs State Of U.P.
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Allahabad High Court

Rahatjan vs State Of U.P. on 3 May, 2024

Author: Siddharth

Bench: Siddharth

HIGH COURT OF JUDICATURE AT ALLAHABAD
 
 


A.F.R.
 
Neutral Citation No. - 2024:AHC:79458-DB
 
Reserved on: 12.02.2024
 
Delivered on: 03.05.2024
 

 
In chamber
 

 
Case :- CRIMINAL APPEAL No. - 72 of 1984
 

 
Appellant :- Rahatjan
 
Respondent :- State of U.P.
 
Counsel for Appellant :- S.I. Jafri,Amar Nath Sharma,Kuldeep Johri,Shadab Ali,Vimlendu Tripathi
 
Counsel for Respondent :- Dga
 

 
Hon'ble Siddharth,J.
 

Hon'ble Ram Manohar Narayan Mishra,J.

(Delivered by Hon'ble R.M.N. Mishra, J.)

1. Heard Sri Vimlendu Tripathi and Sri Kuldeep Johri, learned counsels for the appellant and Sri Sushil Kumar Pandey, learned AGA for the State.

2. This criminal appeal has been filed against the judgement and order dated 22.12.1983 passed by Additional Sessions Judge, Rampur in Session Trial No. 83 of 1983 arising out of Case Crime no. 35/1983 under section 302 IPC, P.S. Suar, District Rampur whereby appellant has been convicted of charge under section 302 IPC and sentenced to imprisonment for life.

3. The prosecution case, in brief, is that on 5.3.1983 after 6:00 pm, the accused Rahatjan had committed the murder of Firasat, a young boy of 12 years of age by strangulating him in his wheat field, situated in village Aglaga, P.S. Suar, District Rampur. It is also said that on 6.3.1983 on being arrested, the accused made an extra judicial confession of his having caused the death of Firasat by strangulating him with the help of Angochha and he helped the police personnel in making available the dead body of deceased Firasat inside his wheat field and muffler with the help of which, Firasat was strangulated by him by taking out the same from the rahat situated in hat very field.

Police investigated the case and filed charge-sheet against the appellant for charge under section 302 IPC. Learned C.J.M., Rampur took cognizance of the offence and committed the case to the court of session for trial. On commencement of trial, learned trial court framed charge under section 302 IPC against the appellant and he was put to trial for said charge. The prosecution examined as many as nine witnesses in support of charge.

4. Akhtar Ali (PW-1), who is the father of the deceased Firasat and is de-facto complainant in this case. He has stated that Firasat Ali, aged 10-11 years, had gone to pray Asar ki Namaz on 5.3.1983, in the evening and thereafter he had not returned. At that time, he was wearing a shirt, Baniyan, Trouser and woollen sweater. He made search on the next day at about 9:00 am. Khurshid Ahmad met him and told about his having seen Firasat alongwith Rahat Jan going towards the side of cane centre after the period of Asar ki Namaz. Thereafter, Chhotey and Noor Ali also met him and they also told him about their having seen Firasat and Rahat Jan going towards the side of Bijlighar on 5.3.1983 at about 6:00 pm. The accused Rahat Jan had a field towards Bijlighar. On having these informations, he went to the house of Rahat Jan and found Rahat Jan not available at his house. He was told by Safadar Mian about Rahat Jan having not returned to the house since 6:00 pm yesterday. He got the report Ex. Ka-1, written from Hashim Husain and went to the police station and lodged the same. It is also stated that the accused is in the habit of indulging in sodomy and his activities were made known to this effect. He has been cross examined at length. He has stated that Firasat Ali deceased had not gone to offer prayer of Asar Ki Namaz in his presence rather he came to know from his wife on return from the jungle. On that day, he had gone to his field, which is at distance of a furlong from his house. Asar Ki Namaz is being offered at about 5:00 pm. He has stated to have participated in Maghrib Ki Namaz and after offering the prayer there, he came to his house and was informed about Firasat having not returned till then. He enquired from the children with whom he used to play but he could not get his whereabouts. It is also stated that, in the night he had not gone to lodge the report with a thinking that Firasat might have gone to the house of his Mamu in village Khempur and in the morning he went to village Khempur to enquire and thereafter returned to his village when Khurshid, Chhotey and Noor Ali met him and informed about their having seen Firasat with the accused after the hours of Asar Ki Namaz. He has also stated that towards the east of his house, there is an open piece of land where there is a Pakar tree. This land is of Barkat Shah and not of the father of Rahat Jan accused but in the same sequence he has shown his ignorance about the same. He has stated to have also gone along with the police party to the house of Safdar but he had not gone inside the house. He has stated to have remained at a distance and had not gone with the police personnel to the house of Safdar. On return from the house of Safdar, he had not gone to any other place alongwith the police party. He has denied the fact of his ever intended to purchase open land from the father of the accused. He has also denied the deference suggestion of his ever abused either the accused or his other family members and his having implicated the accused in this case falsely. He has proved the clothes Ext. -01 to 05, which, the deceased Firasat was wearing at the time when he had gone from his house.

5. Khurshid (PW-2) is a minor boy of 12 or 13 years of age but he is capable of giving the reply and being well understandable one. He has stated that 3 or 4 months back at about 6:00 pm, he had gone to invite Qazi Sahib and when he was going, he saw the accused Rahat Jan and Firasat going towards cane centre. In the morning, he told this fact to Akhtar Ali, father of Firasat. He came to know that the dead body of Firasat had been recovered in the field. In his cross examination, he has stated that he and Firasat used to have the teaching of Quran from Qazi Sahib in the mosque being near the cane centre. When he had gone to invite Qazi Sahib, at that time, Maghrib Ki Namaz was already over. It is stated that the house of Firasat is at a distance of 8 or 10 houses from his house. He has stated that his father had been in the house in the night at about 9 or 9:30 and by that time he had already slept. He has been questioned about the timings of the prayer being made, to which, he replied in detailed. It is also stated that the deceased Firasat used to pray Zohar and Asar ki Namaz in the mosque of Qazi Sahib. On the next day, the father of Firasat met him in the morning at about 8 or 9 am. He has stated that he had not paid any attention about the clothes, which the accused Rahat Jan was wearing at the time when he had seen Firasat and Rahat Jan going towards cane centre. He has denied the suggestion of his having not seen Firasat and Rahat Jan going towards cane centre. He has further denied the defence suggestion of his deposing the false facts at the instance of father of Firasat.

6. Chhotey (PW-3) has stated that about four months back at about 6 or 6:30 pm, he was chewing cane at cane centre alongwith Noor Ali. The accused alongwith Firasat was seen going towards Bijalighar, where Rahat Jan accused has his field, the accused Rahat Jan is in the habit of committing sodomy. On the next day, the corpse of Firasat was recovered. It is also stated that at that time, latif was not with them. He has denied the defence suggestion of his having not seen Firasat and the accused going towards Bijalighar side. He has further denied the suggestion of his deposing on account of any relationship. He has definitely stated that he has not in relation with Akhtar Ali, father of deceased Firasat.

7. Noor Ali, (PW-4), has also stated the same facts of his being with Chhotey at cane centre and chewing cane. He has also stated the facts of his having seen the accused and Firasat going towards Bijalighar. There is a plot of Rahat Jan towards the side of Bijalighar. On the next day, the dead body of Firasat was found in the wheat field of the accused Rahat Jan. He has stated that the Panchayatnama on the dead body was prepared in his presence and he is also witness of all the formalities having been done there in connection with the Panchayatnama. In his cross examination, he has stated that the house of the deceased Firasat is at the distance of 100 or 150 yards from his house. It is stated that when the accused and Firasat were seen going, he had not talked with either of them. He has detailed the particulars of the clothes, which both the persons Firasat and Rahat Jan were wearing at that time. It is also stated that on the road of cane centre, there is no Abadi of Bijlighar, rather the houses of the persons of Bijlighar are on one side towards Rampur-Suar road and the houses of Bijlighar as well as the building itself is/are not visible from the field of the accused. He has denied the suggestion of his having not seen the deceased Firasat in the company of the accused a day before his dead-body was recovered. He has further denied the suggestion of his having any relationship with the family of Firasat deceased.

8. Mohd. Raza (PW -5) has stated that he along with Ahmad Ali and Mohammad Ali was standing at a place when police personnel met them and desired to accompany them. At that time, it was 12 or 12:30 'O' Clock. They were told by the police personnel that they had an information about the accused Rahat Jan having concealed himself at the house of grand-father and they went to arrest him for which their help was desired. He along with others proceeded with the police personnel to the house of Abdul Hasan- the grand-father of the accused. After entering into the house of Abdul Hasan, the accused tried to run-away after coming out of the room, but he was arrested then and there. On interrogation, the accused Rahat Jan has told the facts of his having taken Firasat to the cane centre to enjoy the chewing of cane and cane being not available there, he took him to his field, where he wanted to have sodomy with Firasat, which was not conceded by Firasat, rather he (Firasat) said to inform the villagers about the same as well as to the parents. The accused thereafter confessed his guilt of having murdered Firasat and also said that his dead-body was lying in his wheat field, which, he could make available by going there as well as the Angochha, with which he had caused the death of the Firasat by strangulation. After his having stated this facts, the accused took the police-party to the wheat field, where he made available the dead-body of Firasat, which was lying in his wheat field. He also made available the Angochha, with which, he had strangulated Firasat to death, after taking out from the Rahat of his well, situated in the same field. The witness has proved the Fard Ext. Ka-2, which was prepared at the house of Abdul Hasan pertaining to the arrest of the accused and his having made extra judicial confession to the offence committed by him. He has further proved the Fard of the dead-body being recovered and Angochha as Ext. Ka 3. He has further proved the Angochha itself as Ext. -6, which was taken out by the accused from the well and with which the accused is stated to have strangulated Firasat to death. He has also stated that sample of the wheat crops was also taken by the police personnel vide Fard Ext. Ka- 4 and the sample of the same has been proved by him as Ext.-7. The dead-body of Firasat was sealed and the Panchayatnama and the other papers were prepared at the spot, over which the witness stated to have also signed. He has been cross-examined at length. He has stated that at the time, when they were taken by the police personnel to the house of Abdul Hasan, there was no other public person other than them and the police personnel were three in number. It is stated that at the place where they were standing , there is a Pakar tree, which is at the land of grave-yard.

9. Mohd. Ali, (PW-6), has stated the facts of his being with Mohammad Raza (PW-5) at Pakar tree, when he was also called by the police personnel to help them in arresting the accused Rahat Jan, who was informed to be available and concealing his presence at the house of his grand-father Abdul Hasan. This witness has stated that apart from him, Mohammad Raza and Ahmad Ali were also with them. He has described the manner in which the accused was arrested while coming out from the room itself intending to escape and his having made extra-judicial confession about his having caused the death of Firasat by strangulation with the hep of Angochha and his having desired to help them in making the recovery of dead-body of Firasat and the Angochha itself. He has stated to have put his thumb-impression on the Fard Ext. Ka-2, having been prepared at the house of Abdul Hasan and thereafter the accused Rahat Jan having taken them and the police personnel to the place where he left the dead-body of Firasat and kept the Angochha with which he had strangulated him. It is also stated that the dead body of Firasat was made available by the accused Rahat Jan after taking them at his own wheat-field lying there and the Angochha itself after taking out the same from the Rahat of the well, situated in the very field. He has acknowledged his thumb-impression on the Fard Ext. Ka-3 having been prepared at the spot and the Angochha Ext.-6, with which the accused is said to have strangulated and caused the death of Firasat.

10. Raees (PW-7) has stated that 8 or 9 months back at about 7:30 P.M. he and Latif had seen the accused in the state of feeling too much worried and going towards his house.

11. Shri Daya Nand Tiwari (PW-8) is the Investigating Officer. He has stated that on 6.3.1983 at about 10:40 A.M., an information was made at the police-station about non-availability of Firasat. On the basis of this report Ext. Ka-1, G.D. entry was made, copy of which has been proved as Ext. Ka-6. He at once started the matter itself and went to the house of Rahat Jan, where he was not found. He had prepared its Fard Ext. Ka-7. At about 01 'O' clock. He had sent information through an informant about the accused being available at the house of his grand-father Abdul Hasan. He at-once proceeded to the house of Abdul Hasan and took Mohammad Raza, Mohammad Ali and Ahmad Ali. While being at the house of Abdul Hasan, the accused Rahat Jan tried to run-away, but was arrested. On interrogation, the accused Rahat Jan made extra-judicial confession of having caused the death of Firasat by strangulation and his having concealed the dead-body as well as the Angochha, with which he was strangulated at his wheat field and accused also desired to make available both the things to them. He had prepared the Fard of the house-search and arrest Ext. Ka-2 at the house of Abdul Hasan and therefrom proceeded to the direction to which the accused had taken them. While being at the field, the accused made available the dead-body of Firasat and the Angochha after taking out from the well. He had prepared its Fard Ext. Ka-3. From the spot itself, a constable was sent to the police-station along with a letter, copy of which has been proved as Ext. Ka-9. That constable came at the spot at 3:45 P.M. along with two other constable as well as the papers pertaining to Panchayatnama. He had prepared the Panchayatnama Ext. Ka-10 and proved the photo Lash Ext. Ka-11, chalan Lash Ext. Ka-12, memo to C.M.O. in two sheets Ext. ka-15 and Ex. Ka-16. He had sealed the dead body of Firasat and prepared the specimen of seal Ext. Ka-17. The dead-body was sent to the District Hospital, Rampur for ensuring post-mortem with constables Dharam Singh and Jaipal Singh. Angochha Ext.-6 was sealed at the spot. He had prepared the site-plan of the place of recovery of dead-body as Ext. Ka-18. He had taken the sample of wheat crop and proved the same as Ext.-7 vide its Fard Ext. Ka-4. The accused along with these papers and the sealed articles were brought up to the police-station, where entries were made in the G.D. at about 7:00 P.M. on 6.3.1983, copy of which has been proved as Ext. Ka-19. He has further proved the site plan Ext. Ka-20 pertaining to the place of arrest of the accused and after his having the post-mortem report Ext. Ka-5 and completing the investigation having submitted the charge-sheet Ext. Ka-21 against the accused in court. In his cross-examination, he has stated that from the police-station, they had proceeded to the house of Rahat Jan on cycles and Akhtar Ali, the father of deceased Firasat, had not gone with them to the house of Rahat Jan. Safdar met them at the house of Rahat Jan and there the accused was not found. He has stated to have taken Mohammad Ali, Ahmad Ali and Mohammad Raza from the place where there is a Pakar tree and none of them was known to him from before that day. The house of Abdul Hasan was pointed to him by the witnesses, who had accompanied them. He had denied the suggestion of the accused having not been arrested in the manner, as is told by him as well as the accused having not made the extra judicial confession after his arrest. He has denied the defence suggestion of the dead body having not been recovered at the field of the accused. He had also denied the suggestion of Angochha having not been recovered at the instance of the accused.

12. Dharam Singh, (PW-9), is a formal witness of the fact that on 6.3.1983 he had taken the dead body of Firasat along with the papers to the District Hospital, Rampur and no one was allowed to see the dead body till it remained with him.

13. Learned trial court after appreciation of evidence on record in the light of contentions of learned counsel for the parties observed that the case is based on circumstantial evidence as there is no eye witness in the case. In support of charge against the accused, prosecution has relied upon following circumstances:-

(i) the fact that accused was last seen in the company of deceased Firasat in the evening preceding the discovery of his dead body. (ii) the fact that the accused had absconded and was seen in the perplexed state of affairs. (iii) the extra judicial confession made by the accused on being arrested about his having caused the death of Firasat by strangulating him with the help of Angochha (towel). (iv) the recovery of dead body of Firasat having been made at the instance of the accused by taking the police personnel and witnesses to the place where he had concealed it i.e. in his wheat field. (v) the recovery of Angochha, Ext.-6, from the rahat from the well being situated in the same wheat field after taking it out by the accused himself therefrom.

14. Learned trial court after appreciating these circumstantial evidence in the light of evidence adduced by the prosecution concluded that the circumstances mentioned herein above rather proved by prosecution on strength of evidence adduced during trial, through oral evidence as well as some documentary evidence. Court found that the evidence being that of oral, post mortem notes and the medical is clinching to the issue of guilt thereby establishing the involvement of the accused in the commission of the murder of Firasat with the help of Angochha by way of strangulation and after his having made the extra judicial confession of his guilt ensuring the recovery of his dead body as well as Angochha, Ext-6, itself after taking the same out from the rahat of the well situated in the very wheat field from where the dead body of Firasat was taken out by the accused himself. Thus the cumulative effect of the circumstantial evidence on record is that the prosecution has succeeded to prove the guilt of the accused to the crime and to the offence with which he has been charged beyond all reasonable shadow of doubts and to its hilt. The accused thus is found to be guilty to the offence under section 302 IPC with which he has been charged.

15. Learned trial court, accordingly, passed verdict of guilt against the appellant for charge under section 302 IPC and sentenced him as above. Feeling aggrieved by the impugned judgement and order, present appeal has been filed by the appellant before this Court.

16. Learned counsel for the appellant submitted as follows:

(i) the case is based on circumstantial evidence as this is admitted case that there is no eye witness account of the commission of offence of murder of deceased Firasat.

(ii) the prosecution neither produced doctor, who conducted post mortem examination of the dead body of deceased nor examined constable, who entered missing report of Firasat in General Diary and registered Case Crime No. 35 of 1983.

(iii) the prosecution did not produce any formal witness to prove G.D. entry, registration of case etc.

(iv) the evidence against the appellant is only to the effect of last seen and recovery of dead body of the deceased and recovery of Gamachha from the agricultural field of his father.

(v) according to prosecution version, accused was arrested at 13:30 hours on 6.3.1983 and after that, the dead body was shown to be recovered at 14:30 hours on 6.3.1983 on pointing out of the accused. Thereafter, criminal case was registered at police station Suar, District Rampur as Crime No. 35/1983 under section 302/201 IPC by making entry in the General Diary at 3:15 pm. However, the inquest proceedings were started at 11:00 am on 6.3.1983, wherein, even the Crime No. 35 of 1983 is also mentioned at the top of the inquest report, Ex. Ka-10. Moreover, the investigating officer also states that he reached at the place of the incident at 15:45 hours on 6.3.1983. These factual status demonstrates that the dead body was recovered much before the time of arrest of the appellant and after recovery of the dead body, a story was set up regarding arrest, recovery and last seen etc. and hence the entire story of prosecution appears doubtful and unreliable.

(vi) so far as the evidence of last seen is concerned, the testimony of prosecution witnesses Khurshid (PW-2), Chhotey (PW-3), Noor Ali (PW-4) and the prosecution witness Raees (PW-7), who had given stereotyped statements regarding last seen and their testimony appears to be unreliable. Infact, if these witnesses had actually seen the deceased in company of accused as last seen on 5.3.1983, there is no reason why they could not locate the dead body until 6.3.1983 at about 14:30 hours, where distance of cane centre and electric house is 30-40 yards where the deceased and accused were allegedly last seen and distance between electric house and the agricultural field of the accused where dead body was recovered is only 10 to 15 footsteps.

17. There is no close link or live link between the last seen evidence and the recovery of the dead body and hence the evidence of last seen is unreliable keeping in view the timing of inquest, arrest of the accused and recovery of dead body and the registration of the criminal case at police station concerned.

18. Even if the appellant Rahat Jan is held to be guilty of the alleged crime, he is entitled to be extended benefit of Section 18(1), 20 and 21 of the Juvenile Justice (Care and Protection) Act, 2015. He can only proceeded in terms of Section 18(1) of the Act and no substantive sentence of imprisonment is liable to be inflicted on him. The appellant was held to be juvenile by the Juvenile Justice Board after conducting due inquiry in its report dated 15.3.2019 placed on reference made by this Court vide order dated 22.1.2019 whereby District Judge, Rampur was directed to get an inquiry conducted from the appropriate forum regarding plea of juvenility made by the appellant/ applicant in present appeal. The Juvenile Justice Board in its order dated 15.3.2019 held that the appellant was juvenile in conflict with law on the date of offence i.e. 5.3.1983 and he was of age 14 years at that time.

19. Learned counsel for the appellant placed reliance upon the judgement of Hon'ble Apex Court in R. Sreenivasa vs. State of Karnataka, 2023 SCC Online SC 1132, Hiralal Mallick vs. The State of Bihar, (1977) 4 SCC 44, Rakesh Kumar and another vs. The state of U.P., 1976 SCC Online All 530, Karan alias Fatiya vs. State of Madhya Pradesh, (2023) 5 SCC 504, Mahesh vs. State of Rajasthan, (2021) 18 SCC 582, Narayan Chetanram Chaudhary vs. State of Maharashtra, 2023 SCC Online SC 340, in support of his submissions.

20. In R. Sreenivasa vs. State of Karnataka, Hon'ble Apex Court while deciding criminal appeal against the judgement of conviction and sentence in case under section 302 IPC where High Court reversed the order of acquittal against the appellant recorded by the trial court, allowed the appeal and restored verdict of acquittal passed by the trial court, observed as under:-

"17. In the present case, given that there is no definitive evidence of last seen as also the fact that there is a long time-gap between the alleged last seen and the recovery of the body, and in the absence of other corroborative pieces of evidence, it cannot be said that the chain of circumstances is so complete that the only inference that could be drawn is the guilt of the appellant. In Laxman Prasad v State of Madhya Pradesh, (2023) 6 SCC 399, we had, upon considering Sharad Birdhichand Sarda v State of Maharashtra, (1984) 4 SCC 116 and Shailendra Rajdev Pasvan v State of Gujarat, (2020) 14 SCC 750, held that '... In a case of circumstantial evidence, the chain has to be complete in all respects so as to indicate the guilt of the accused and also exclude any other theory of the crime.' It would be unsafe to sustain the conviction of the appellant on such evidence, where the chain is clearly incomplete. That apart, the presumption of innocence is in favour of the accused and when doubts emanate, the benefit accrues to the accused, and not the prosecution. Reference can be made to Suresh Thipmppa Shetty v State of Maharashtra, 2023 INSC 7494."

21. Other judgements cited by learned counsel for the appellant relates to plea of juvenility raised by the accused at appellate stage. In Karan alias Fatiya vs. State of Madhya Pradesh, Hon'ble Supreme Court while deciding criminal appeal arising out from the judgement and order of High Court, Madhya Pradesh, Bench at Indore in case under section 302, 363, 376(2)(i) and 201 IPC, held as under:-

"According to sub- section (3) of section 9 of the 2015 Act, the Court which finds that the person who committed the offence was a child on the date of commission of such offence would forward the child to the JJB for passing appropriate orders and sentence, if any, passed by the Court shall be deemed to have no effect. This does not specifically or even impliedly provide that the conviction recorded by any Court with respect to a person who has subsequently after the disposal of the case found to be juvenile or a child, would also lose its effect rather it is only the sentence if any passed by the Court would be deemed to have no effect.

Further, the intention of the legislature was to give benefit to a person who is declared to be a child on the date of the offence only with respect to its sentence part. If the conviction was also to be made ineffective then either the jurisdiction of regular Sessions Court would have been completely excluded not only under section 9 of the 2015 Act but also under section 25 of the 2015 Act, provision would have been made that on a finding being recorded that the person being tried is a child, a pending trial should also be relegated to the JJB and also that such trial would be held to be null and void. Instead, under section 25 of the 2015 Act, it is clearly provided that any proceeding pending before any Board or Court on the date of commencement of the 2015 Act shall be continued in that Board or Court as if this Act had not been enacted.

Having considered the statutory provisions laid down in section 9 of the 2015 Act and also section 7A of the 2000 Act which is identical to section 9 of the 2015 Act, we are of the view that merits of the conviction could be tested and the conviction which was recorded cannot be held to be vitiated in law merely because the inquiry was not conducted by JJB. It is only the question of sentence for which the provisions of the 2015 Act would be attracted and any sentence in excess of what is permissible under the 2015 Act will have to be accordingly amended as per the provisions of the 2015 Act. Otherwise, the accused who has committed a heinous offence and who did not claim juvenility before the Trial Court would be allowed to go scot-free. This is also not the object and intention provided in the 2015 Act. The object under the 2015 Act dealing with the rights and liberties of the juvenile is only to ensure that if he or she could be brought into the main stream by awarding lesser sentence and also directing for other facilities for welfare of the juvenile in conflict with law during his stay in any of the institutions defined under the 2015 Act"

22. In that case, appellant was awarded death sentence for said charge by the judgement of trial court dated 17.5.2018 and appeal filed by the appellant was dismissed by the High Court and death reference forwarded by trial court was affirmed. The appellant raised plea of juvenility before the Supreme Court by filing I.A. No. 43271 of 2019. The Supreme Court directed the trial court to make endevour to consider whether the appellant was juvenile as on the date when the offence in question was committed after considering all relevant documents as well as medical check-up of the appellant in the manner known to the law.

23. Pursuant to the said order, a report was received from the court of first Additional Sessions Judge, Madhya Pradesh dated 27.10.2022, wherein, it was stated that date of incident being 15.12.2017; the appellant was 15 years 04 months and 20 days of age on the date of incident. Hon'ble Supreme Court with above observation and proposition of law as laid down by the Court in Jitendra Singh vs. State of U.P. (2013) 11 SCC 193; Mahesh vs. State of Rajasthan, (2021) 18 SCC 582; Satya Deo vs. State of U.P., (2020) 10 SCC 555, upheld the conviction of appellant for said charges. However, the sentence was set aside. It is further observed that as the appellant at present would be more than 20 years, there would be no requirement of sending him to the JJB or any other child care facility or institution. The appellant is in judicial custody. He shall be released forthwith. The impugned judgement shall stand modified to the aforesaid extent.

24. Per contra, learned AGA submitted that the finding of guilt recorded against the appellant by the trial court is based on proper and meticulous examination or evidence adduced during trial and same may not be disturbed or set aside in the present appeal as the prosecution has successfully proved all links of circumstantial evidence emerged from the evidence on record and charge against the appellant is duly proved by the prosecution to the hilt. The link of chain of circumstances form complete chain in present case and appellant has been rightly convicted and sentenced by the trial court. However, he did not dispute the fact that the plea of juvenility raised by the appellant has been accepted by the Juvenile Justice Board, Rampur in its order dated 15.3.2019.

25. On perusal of records it appears that chik of FIR has been lodged in the case and missing report was lodged at police station Suar, District Rampur on the basis of written report, Ext.Ka-1 dated 6.3.1983 filed by informant Akhtar Ali, father of deceased Firasat aged about 10-11 years vide GD report no. 16 dated 6.3.1983 and Dariyaft Head (DH) no. 3/83 was registered. Police proceeded to inquire missing son of informant namely Firasat on the basis of this GD entry; search was conducted in the house of suspect Rahatjan son of Safdar and eventually search and arrest was made; Fard was prepared by investigating officer on 6.3.1983 at 13:30 hour. The suspect Rahatjan was arrested by the police in the process of fleeing away from his house on noticing police team according to recovery memo of dead body of Firasat and Angochha dated 6.3.193 at 14:30 hours, Ext. Ka-2. It appears that dead body of the deceased Firasat was recovered on pointing out of appellant after his arrest on same day i.e. 6.3.1983 at 14:30 hours from the well situated in wheat field of accused; crops of wheat were broken in the surrounding of the well from where dead body and Angochha, used in strangulating the deceased, were recovered. The length of Angochha was 3 hath, 1 balist, 4 angul and 1 hath, 1 balist 8 angul; this angochha (towel) was taken into possession and recovery memo was prepared on the site in presence of police and witnesses of locality namely Mohd. Raja, Mohd. Ali and Ahmad Ali.

26. This is also stated in this recovery memo that accused confessed his guilt of committing murder of Firasat, minor, by strangulating him and throwing the dead body in the well; investigating officer also collected broken plants of wheat from the place of incident on which Ext.Ka- 4 was marked. In inquest report, time of report at police station is shown as 6.3.1983 at 10:40 am and inquest started at 11:00 am on same day, which was concluded at 5:00 pm; in inquest report Ext.Ka-10, it is stated that in opinion of witnesses of inquest, deceased was done to death by strangulation, therefore, its post mortem examination is required. In present case, genuineness of post mortem report was admitted by learned counsel for defence during course of trial and for that reasons, same is admissible in evidence under section 294 Cr.P.C., which provides as under:-

1. "Where any document is filed before any Court by the prosecution or the accused, the particulars of every such document shall be included in a list and the prosecution or the accused, as the case may be, or the pleader for the prosecution or the accused, if any, shall be called upon to admit or deny the genuineness of each such document.

2. The list of documents shall be in such form as may be prescribed by the State Government.

3. Where the genuineness of any document is not disputed, such document may be read in evidence in any inquiry trial or other proceeding under this Code without proof of the signature of the person to whom it purports to be signed;

Provided that the Court may, in its discretion, require such signature to be proved."

27. As genuineness of this documents was admitted by adversary (accused side) this is rightly exhibited by the court on which Ext.-Ka-5 has been marked. This post mortem report, being exhibited during course of trial, is liable to be read in evidence and statement of learned counsel for the appellant in this regard that the doctor, who conducted post mortem of the dead body of the deceased, was not produced in evidence and for that reason this report is not duly proved cannot be subscribed. Ext.Ka-5 reveals that post mortem examination of dead body of the deceased boy, Firasat, aged about 12 years, was conducted on 7.3.1983 at 1:00 pm at district hospital, Rampur by Dr. K. Chandra. The dead body was identified by two constables Jaipal and Dharmpal of P.S. Suar, who carried the body to post mortem house; the time of death was about two days prior to its rigour-mortise was present in lower extremity and present on upper extremity, post mortem staining was present over back and buttock; eyes were closed; conjunctiva congested and pupils dilated; face livid cyanosed; mouth half opened; frothy fluid coming out from nostrils; lips cyanosed and saliva marks present over chin; froth coming out from both nostrils; nails cyanosed and finger of both hand closed.

28. Ante mortem injuries:-

(1) abraded ligature mark 11cm X 3 cm over front of neck which is horizontal (2) abrasion 2cm X 2cm over left side of face 4cm of below left ear; dead body was handed over for post mortem alongwith 11 enclosures.

29. Internal examination:

(i) fracture of larynx and trachea and also hyoid bone and ecohymosis present under injury no. 1, curtile veins ruptured; mussels of neck lacerated; membranes, brain, skull, lungs were congested; right chamber of heart was full, left was empty. In the opinion of doctor, cause of death was asphyxia as a result of strangulation.

30. PW-1, Akhtar Ali, who is father of deceased stated in evidence that his son Firasat Ali went to pray Namaz of Asar on 5.3.1983 and did not come back. He was around 10-11 years of age. He wore Kamij, Payjama, Baniyan and Suitor, when he did not come back he went for his search and on next day at 9:00 am, Khurshid Ahmad, PW-2 told him that he had seen his son Firasat alongwith Rahatjan towards cane centre on 5.3.1983 after offering Namaz of Asar. Witness stated that after meeting Khurshid he also met Chhote and Noor, who told that when they were having sugar cane, they saw Firasat and Rajhatjan moving towards electric house on 5.3.1983 in the evening; witnesses identified accused in the court. He also stated that after meeting the witnesses, he went to the house of Rahatjan but did not find him there and he was apprised that he was not traceable from last evening since 6:00 pm. Thereafter, he got written report scribed by Hashim Husain and after it was read down to him, he signed it in Urdu, which is marked as Ext. Ka-1 during his evidence. He also stated that accused Rahatjan is a man of bad image and he is known to be a sodomized. In cross examination, this witness stated that apart from the deceased Firasat Ali, he was left with two sons when he came back to home on 5.3.1983 after paying Namaz of Asar, his wife told him that Firasat had gone to offer Namaz. He went in search of his son on getting information on finding him absent after offering Namaz of Asar, which usually take place at 8:00 to 8:30 pm; he visited many places for search of him but could not find him in the night; Khurshid met him in the morning at around 9:00 am, who is his neighbour. Khurshid Ahmad (PW-2), Chhotey son of Altaf (PW-3), Noor Ali (PW-4) are witnesses of last seen.

31. Khurshid, PW-2, is a child witness but after asking some preliminary question, the trial court found him understandable; he gave rational answers to the questions and therefore oath was administered to him. There is nothing in evidence of these two witnesses either in their examination in chief or in their cross examination on account of which casts any suspicion or doubt inferred as regards their version that they had seen deceased and accused Rahatjan in company in the evening on 5.3.1983 and his dead body was recovered in the well situated in the field of accused next day; deceased and PW-2 were studying in same school.

32. PW-3- Chhotey is also witness of last seen, who stated that he had seen deceased and accused together on 5.3.1983 at around 6:30 pm when they were moving towards electric house and field of accused Rahatjan situated towards electric house; there was complaint of sodomy against accused Rahatjan; in cross examination witness stated that there is gap of 3 to 4 fields between his field and field of accused.

33. PW-4, Noor Ali, is also witness of last seen, who stated in his evidence that he had seen the deceased and accused together at around 6:30 pm while they were moving towards electric house and field of accused Rahatjan situates towards electric house; dead body of Firasat was found in the wheat field of accused on next day; inquest was conducted by Darogaji before him and thereafter dead body was sealed and sent for post mortem; when he saw deceased and accused together at last time he was chewing sugar-cane alongwith witness Chhotey; witness clarified that he was not related to the deceased in any manner.

34. PW-5, Mohd. Raza, has stated in his evidence that he was standing with Ahmad Ali and Mohd. Ali together at a place and noticed that one Sub Inspector was going alongwith two constables at around 12:30 hours in the day and they were called by the police officials to be witnesses of arrest of suspect Rahatjan and accused was arrested from the house of grandfather, Hazi Abdul Hasan in their presence by police; accused confessed his guilty in his presence before the police, who stated that he had taken Firasat at cane centre on pretext of chewing sugar-cane but they could not find sugar-cane there and therefrom he took him to his field on pretext of taking fodder but on reaching the field, his intention got polluted and he intended to sodomise the boy (Firasat); he was not inclined to concede to his filthy demand and threatened him that he would tell this thing to people of Mohalla on reaching there and would also tell this fact to his father. The accused confessed to commit murder of the boy and had thrown the body in the wheat field of the accused situated in east of electric house; he pointed out towards the dead body of Firasat, which was lying in the field and took out Angochha, which was hanging on bucket attached to his rahat; inquest was conducted by Darogaji at the place of recovery of dead body; witness also stated that rahat was also installed in the well lying in the field of accused from where dead body was recovered.

35. PW-6, Mohd. Ali, is also witness of arrest of the accused and recovery of dead body of the deceased and Angochha used in strangulating the deceased on pointing out of the accused. This witness has also stated that accused Rahatjan had been arrested by the police in his presence and stated to sub inspector (Darogaji) on being interrogated by him that he intended to do some filthy act with Firasat but when he latter did not agree to his offer and threatened to told this fact to family members, he strangulated him by Angochha and concealed the dead body in the wheat field, Ext.Ka-3 was marked on recovery memo of Angochha and material Ex.-6 was marked on Angochha allegedly used in the commission of murder. The accused had pointed out the dead body in a far place in the wheat field, which was lying around 30 fits away from the mer of field as crop of wheat was grown up at that time; dead body was not visible from frontage of the field, this chak was one and half acre.

36. PW-7, Raees, has stated in his evidence that they saw accused Rahatjan in perplexed condition near go-down at around 7:30 pm, 8 to 9 months prior to his evidence before the court, who was moving towards his home fastly and darkness had engulfed the locality at that time.

37. PW-8, SI, Dayanand Tiwari, I.O. of the case; who also proved the factum of arrest of the accused, recovery of dead body and one Angochha used in strangulating the deceased; steps taken for investigation and registration of case on 6.3.1983 vide GD report no. 16 time 10:40 hours on information of informant regarding missing of his son. He proved extract of GD of registration of case in absence of its author constable Rajendra Singh on which Ext. Ka-6 was marked. He stated that he recovered Angochha from rahat installed in the well, which was situated in the field of accused and he also recovered dead body of the deceased, which was lying in the wheat field of the accused. He proved search and arrest memo of the accused as Ext. Ka-2. He also proved site plan of the place of incident as Ext.Ka-18 being its author. He also proved inquest report, Ext.Ka-10, of the deceased as well as annexures sent alongwith dead body like photo lass Ext. Ka-11 and Ext. Ka-14 report and letter R.I. as Ext. Ka-15 and Ka-16 in evidence.

38. Accused has stated in his statement under section 313 Cr.P.C. that he has been falsely implicated due to some land dispute between the informant and accused. He introduced DW-1, Nabi Jaan in defence evidence, who stated that he is acquainted with informant; the deceased and accused belong to his Mohalla; an altercation took place prior to this incident, between informant and father of accused with regard to tethering of cattle at an open land lying in front of Abadi of informant; this altercation occurred 8 to 10 days ago of death of deceased boy; witness denied prosecution suggestion that he is related to the accused and for that reason he deposed in his favour.

39. Be that as it may, it would for fetching exercise to extend benefit of doubt to the accused only due to the fact that after some days of this unfortunate murder of tendered boy around 10 to 11 years of age, some altercation took place between father of deceased and father of accused due to some land dispute on account of tethering of cattle, as many as three witnesses of last seen has supported prosecution version. Angochha used in strangulation of deceased boy as well as dead body of the deceased has been recovered on pointing out of the accused on next day of missing boy from the field of accused is duly proved. Although confession of accused for committing murder of deceased on account of his ill intention to commit unnatural sex with the deceased and consequent threatening hurled by the deceased being made before the police and police custody cannot be permitted to be proved by the public witnesses like PW-5, Mohd. Raza and PW-6 Mohd. Ali on account of statutory prohibition under section 25 and 26 of Evidence Act, yet the recovery of dead body and Angochha used in strangulation of the deceased based on disclosure statement of the accused before the police and therefore, same be protected under section 27 of the Evidence Act, which is exception of section 25 and 26 of the Evidence Act. It provides that "when any relevant fact is deposed to as discovered in consequence of information received from a person accused of any offence, whether or not such person is in the custody of a police officer, the fact discovered may be proved, but not the information, whether it amounts to a confession or not, as relates distinctly to the fact thereby discovered may be proved."

40. Thus, on re-appreciation of evidence on record, we are of the considered opinion that incriminating circumstances put-forth by prosecution against the appellant are duly proved by the prosecution evidence during trial and circumstances established against the appellant are of such tendency that unerringly point towards the commission of accused and the prosecution has successfully proved the links of the chain of circumstantial evidence completely and reasonably; accused was last seen by three witnesses in the company of the deceased and the deceased was never found alive thereafter in the evening preceding to the recovery of dead body; name of accused find place in the missing report registered with police station at the instance of father of the deceased in the morning on 6.3.1983 mentions the name of accused as suspect; accused was arrested on the same day in the afternoon on 6.3.1983 and on his pointing out, dead body and Angochha used in the commission of offence were recovered; a natural motive has been introduced in evidence of witnesses that accused intended to commit unnatural sex (sodomy) with the boy and when he objected to his immoral desire and threatened him to disclose this fact to the people, the accused killed him to avoid any further public outrage against him and concealed the dead body in his field, which was subsequently recovered on his pointing out together with Angochha used in strangulation of the deceased.

41. With foregoing discussions, we find no factual or legal error or infirmity in recording conviction of the appellant by learned trial court in the impugned judgement of conviction to the appellant for charge under section 302 IPC and the same is affirmed. However, the fact that the appellant raised plea of juvenility during pendency of present appeal and direction was issued by this Court to session court vide order dated 22.1.2019 to get an inquiry conducted from the appropriate forum regarding plea of juvenility made by the appellant/ applicant- Rahatjan, after hearing respective parties and submits its report.

42. Learned Juvenile Justice Board, Rampur acted on direction of Session Judge and proceeded with the order of this court and held the appellant as juvenile in conflict with law on the date of offence on 5.3.1983 vide report dated 15.3.2019 after conducting inquiry envisaged under the Act under the Juvenile Justice (Care and Protection) Act. In the opinion of Juvenile Justice Board, appellant was aged around 14 years on the date of offence. This finding of Juvenile Justice Board as has given, same has not been stated to be set aside by order of any superior court.

43. In Satya Deo vs. State of U.P. (supra), a plea of juvenility was taken by the appellant before the Supreme Court in case under section 302/34 IPC. The Apex Court directed the trial court to conduct an inquiry to ascertain if the appellant was juvenile on the date of occurrence i.e. 11.12.1981 on the basis of material, which could be placed on record. Pursuant to direction, the trial court examined plea of juvenility and reported that the appellant was not juvenile as per the Juvenile Justice Act, 1986 as he was more than 16 years of age on the date of commission of offence i.e. 11.12.1981. Hon'ble Supreme Court in this case considered the conflicting plea for age of juvenility prescribed under the Juvenile Justice Act, 1986, Juvenile Justice (Care and Protection) Act, 2000 and Juvenile Justice (Care and Protection of Children) Act, 2015 in the light of Pratap Singh vs. State of Jharkhand and others and some other judgements.

44. In Pratap Singh vs. State of Jharkhand and others, the Constitution Bench held that 2000 Act would be applicable in pending proceedings instituted under the 1986 Act in any court or authority, if the person had not completed 18 years of age as on 1.4.2001 when 2000 Act came into force. On the first question "whether date of occurrence will be reckoning date of determining the age of the alleged offender as juvenile offender or the date when he produced in the court/ competent authority. The Apex Court held that reckoning date for determination of age of juvenile is the date of offence and not the date when he is produced before the authority or in a court. Consequently, the 2000 Act would have prospective effect and not retrospective effect except in cases where the person had not completed the age of eighteen years on the date of commencement of the 2000 Act. Other pending cases would be governed by the provisions of the 1986 Act.

45. Subsequent to the decision of Constitution Bench in Pratap Singh (supra), several amendments were made to the 2000 Act by Amendment Act No. 33 of 2006 under section 2(i) of 2000 Act "juvenile in conflict with law" means a juvenile who is alleged to have committed an offence and has not completed eighteenth year of age as on the date of commission of such offence" In terms of clause (l) to section 2 of the 2000 Act, Satya Deo, being less than 18 years of age, was juvenile on the date of commission of offence as 11.12.1981 whereas his date of birth was recorded as 15.4.1965.

46. In the opinion of Hon'ble Apex Court, 2000 Act does not distinguish between a boy or a girl and a person under the age of 18 years is juvenile. However, under the 2000 Act, age on the date of commission of offence is determining factor. Section 20 in Satya Deo case, Apex Court observed as under:-

"20. Special provision in respect of pending cases.-- Notwithstanding 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 (l) 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." Section 20 is a special provision with respect to pending cases and begins with a limited non-obstante or overriding clause notwithstanding anything contained in the 2000 Act. Legislative intent clearly expressed states that all proceedings in respect of a juvenile pending in any court on the date on which the 2000 Act came into force shall continue before that court as if the 2000 Act had not been passed. Though the proceedings are to continue before the court, the section states that if the court comes to a finding that a juvenile has committed the offence, it shall record the finding but instead of passing an order of sentence, forward the juvenile to the Juvenile Justice Board (Board) which shall then pass orders in accordance with the provisions of the 2000 Act, as if the Board itself had conducted an inquiry and was satisfied that the juvenile had committed the offence. The proviso however states that the Board, for any adequate and special reasons, can review the case and pass appropriate order in the interest of the juvenile. Explanation added to Section 20 vide Act 33 of 2006, which again is of significant importance, states that the court where 'the proceedings' are pending 'at any stage' shall determine the question of juvenility of the accused. The expression 'all pending cases' includes not only trial but even subsequent proceedings by way of appeal, revision etc. or any other criminal proceedings. Lastly, 2000 Act applies even to cases where the accused was a juvenile on the date of commission of the offence, but had ceased to be a juvenile on or before the date of commencement of the 2000 Act. In even such cases, provisions of the 2000 Act are to apply as if these provisions were in force for all purposes and at all material time when the offence was committed.

Thus, in respect of pending cases, Section 20 authoritatively commands that the court must at any stage, even post the judgment by the trial court when the matter is pending in appeal, revision or otherwise, consider and decide upon the question of juvenility. Juvenility is determined by the age on the date of commission of the offence. The factum that the juvenile was an adult on the date of enforcement of the 2000 Act or subsequently had attained adulthood would not matter. If the accused was juvenile, the court would, even while maintaining conviction, send the case to the Board to issue direction and order in accordance with the provisions of the 2000 Act.

12. By the amendment Act No. 33 of 2006, Section 7-A was inserted in the 2000 Act setting-out the procedure to be followed by the court to determine the claim of juvenility. Section 7A, which came into effect on 22.08.2006, reads:

"7-A. Procedure to be followed when claim of juvenility is raised before any court.--(1) Whenever a claim of juvenility is raised before any court or a court is of the opinion that an accused person was a juvenile on the date of commission of the offence, the court shall make an enquiry, take such evidence as may be necessary (but not an affidavit) so as to determine the age of such person, and shall record a finding whether the person is a juvenile or a child or not, stating his age as nearly as may be:

Provided that a claim of juvenility may be raised before any court and it shall be recognised at any stage, even after final disposal of the case, and such claim shall be determined in terms of the provisions contained in this Act and the Rules made thereunder, even if the juvenile has ceased to be so on or before the date of commencement of this Act.

(2) If the court finds a person to be a juvenile on the date of commission of the offence under sub-section (1), it shall forward the juvenile to the Board for passing appropriate order, and the sentence if any, passed by a court shall be deemed to have no effect." Proviso to Section 7A is important for our purpose as it states that the claim of juvenility may be raised before 'any court' 'at any stage', even after the final disposal of the case. When such claim is made, it shall be determined in terms of the provisions of the 2000 Act and the rules framed thereunder, even when the accused had ceased to be a juvenile on or before commencement of the 2000 Act. Thus it would not matter if the accused, though a juvenile on the date of commission of the offence, had become an adult before or after the date of commencement of the 2000 Act on 01.04.2001. He would be entitled to benefit of the 2000 Act.

13. Section 64 of the 2000 Act was also amended by Act No. 33 of 2006 by incorporating a proviso and explanation and by replacing the words 'may direct' with the words 'shall direct' in the main provision. Post the amendment, Section 64 reads as under:

"64. Juvenile in conflict with law undergoing sentence at commencement of this Act-

In any area in which this Act is brought into force, the State Government shall direct that a juvenile in conflict with law who is undergoing any sentence of imprisonment at the commencement of this Act, shall, in lieu of undergoing such sentence, be sent to a special home or be kept in fit institution in such manner as the State Government thinks fit for the remainder of the period of the sentence; and the provisions of this Act shall apply to the juvenile as if he had been ordered by the Board to be sent to such special home or institution or, as the case may be, ordered to be kept under protective care under sub-section (2) of section 16 of this Act.

Provided that the State Government, or as the case may be the board, may, for any adequate and special reason to be recorded in writing, review the case of a juvenile in conflict with law undergoing a sentence of imprisonment, who has ceased to be so on or before the commencement of this Act , and pass appropriate order in the interest of such juvenile.

Explanation :- In all cases where a juvenile in conflict with law is undergoing a sentence of imprisonment at any stage on the date of commencement of this Act, his case including the issue of juvenility, shall be deemed to be decided in terms of clause (l) of section 2 and other provisions contained in this act and the rules made thereunder, irrespective of the fact that he ceases to be a juvenile on or before such date and accordingly he shall be sent to the special home or a fit institution, as the case may be, for the remainder of the period of the sentence but such sentence shall not in any case exceed the maximum period provided in section 15 of this act." Substitution of the words 'may direct' with 'shall direct' in the main provision is to clarify that the provision is mandatory and not directory. Section 64 has to be read harmoniously with the newly added proviso and explanation and also other amendments made vide Act 33 of 2006 in Section 20 and by way of inserting Section 7A in the 2000 Act. The main provision states that where a juvenile in conflict with law is undergoing any sentence of imprisonment at the commencement of the 2000 Act, he shall, in lieu of undergoing the sentence, be sent to a special home or be kept in a fit institution in such manner as the state government thinks fit for the remainder of the period of sentence. Further, the provisions of the 2000 Act are to apply as if the juvenile had been ordered by the Board to be sent to the special home or institution and ordered to be kept under protective care under sub-section (2) of Section 16 of the Act. The proviso states that the state government or the Board, for any adequate and special reasons to be recorded in writing, review the case of the juvenile in conflict with law who is undergoing sentence of imprisonment and who had ceased to be a juvenile on or before the commencement of the 2000 Act and pass appropriate orders. However, it is the explanation which is of extreme significance as it states that in all cases where a juvenile in conflict with law is undergoing a sentence of imprisonment on the date of commencement of the 2000 Act, the juvenile's case including the issue of juvenility, shall be deemed to be decided in terms of clause (l) to Section 2 and other provisions and rules made under the 2000 Act irrespective of the fact that the juvenile had ceased to be a juvenile. Such juvenile shall be sent to special home or fit institution for the remainder period of his sentence but such sentence shall not exceed the maximum period provided in Section 15 of the 2000 Act. The statute overrules and modifies the sentence awarded, even in decided cases.

14. This Court in Dharambir v. State (NCT of Delhi) and Another 4 had analysed the scheme and application of the 2000 Act to the accused who were below the age of eighteen years on the date of commission of offence which was committed prior to the enactment of the 2000 Act, to opine and hold:

"14. Proviso to sub-section (1) of Section 7-A contemplates that a claim of juvenility can be raised before any court and has to be recognised at any stage even after disposal of the case and such claim is required to be determined in terms of the provisions contained in the Act of 2000 and the Rules framed thereunder, even if the juvenile has ceased to be so on or before the date of the commencement of the Act of 2000. The effect of the proviso is that a juvenile who had not completed eighteen years of age on the date of commission of the offence would also be entitled to the benefit of the Act of 2000 as if the provisions of Section 2(k) of the said Act, which defines "juvenile" or "child" to mean a person who has not completed eighteenth year of age, had always been in existence even during the operation of the 1986 Act.

15. It is, thus, manifest from a conjoint reading of Sections 2(k), 2(l), 7-A, 20 and 49 of the Act of 2000, read with Rules 12 and 98 of the Juvenile Justice (Care and Protection of Children) Rules, 2007 that all persons who were below the age of eighteen years on the date of commission of the offence even prior to 1-4-2001 would be treated as juveniles even if the 4 (2010) 5 SCC 344 claim of juvenility is raised after they have attained the age of eighteen years on or before the date of the commencement of the Act of 2000 and were undergoing sentences upon being convicted. In the view we have taken, we are fortified by the dictum of this Court in a recent decision in Hari Ram v. State of Rajasthan [(2009) 13 SCC 211: (2010) 1 SCC (Cri) 987]."

15. In Mumtaz v. State of U.P, while referring to several earlier decisions, this court dealt with effect of Section 20 of the 2000 Act and its inter-play with the 1986 Act, to elucidate:

"18. The effect of Section 20 of the 2000 Act was considered in Pratap Singh v. State of Jharkhand [Pratap Singh v. State of Jharkhand, (2005) 3 SCC 551: 2005 SCC (Cri) 742] and it was stated as under: (SCC p. 570, para 31) "31. Section 20 of the Act as quoted above deals with the special provision in respect of pending cases and begins with a non obstante clause.

The sentence 'notwithstanding 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 came into force' has great significance. The proceedings in respect of a juvenile pending in any court referred to in Section 20 of the Act are relatable to proceedings initiated before the 2000 Act came into force and which are pending when the 2000 Act came into force. The term "any court" would include even ordinary criminal courts. If the person was a "juvenile" under the 1986 Act the proceedings would not be pending in criminal courts. They would be pending in criminal courts only if the boy had crossed 16 years or the girl had crossed 18 years. This shows that Section 20 refers to cases where a person had ceased to 5 (2016) 11 SCC 786 be a juvenile under the 1986 Act but had not yet crossed the age of 18 years then the pending case shall continue in that court as if the 2000 Act has 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, shall forward the juvenile to the Board which shall pass orders in respect of that juvenile."

19. In Bijender Singh v. State of Haryana [Bijender Singh v. State of Haryana, (2005) 3 SCC 685 : 2005 SCC (Cri) 889] , the legal position as regards Section 20 was stated in the following words: (SCC pp. 687- 88, paras 8-10 & 12):

"8. One of the basic distinctions between the 1986 Act and the 2000 Act relates to the age of males and females. Under the 1986 Act, a juvenile means a male juvenile who has not attained the age of 16 years, and a female juvenile who has not attained the age of 18 years. In the 2000 Act, the distinction between male and female juveniles on the basis of age has not been maintained. The age-limit is 18 years for both males and females.

9. A person above 16 years in terms of the 1986 Act was not a juvenile. In that view of the matter the question whether a person above 16 years becomes "juvenile" within the purview of the 2000 Act must be answered having regard to the object and purport thereof.

10. In terms of the 1986 Act, a person who was not juvenile could be tried in any court. Section 20 of the 2000 Act takes care of such a situation stating that despite the same the trial shall continue in that court as if that Act has not been passed and in the event, he is found to be guilty of commission of an offence, a finding to that effect shall be recorded in the judgment of conviction, if any, but instead of passing any sentence in relation to the juvenile, he would be forwarded to the Juvenile Justice Board (in short "the Board") which shall pass orders in accordance with the provisions of the Act as if it has been satisfied on inquiry that a juvenile has committed the offence. A legal fiction has, thus, been created in the said provision. A legal fiction as is well known must be given its full effect although it has its limitations.

12. Thus, by reason of legal fiction, a person, although not a juvenile, has to be treated to be one by the Board for the purpose of sentencing, which takes care of a situation that the person although not a juvenile in terms of the 1986 Act but still would be treated as such under the 2000 Act for the said limited purpose."

20. In Dharambir v. State (NCT of Delhi) [Dharambir v. State (NCT of Delhi), (2010) 5 SCC 344 : (2010) 2 SCC (Cri) 1274] the determination of juvenility even after conviction was one of the issues and it was stated: (SCC p. 347, paras 11-12) "11. It is plain from the language of the Explanation to Section 20 that in all pending cases, which would include not only trials but even subsequent proceedings by way of revision or appeal, etc., the determination of juvenility of a juvenile has to be in terms of clause (l) of Section 2, even if the juvenile ceases to be a juvenile on or before 1-4-2001, when the 2000 Act came into force, and the provisions of the Act would apply as if the said provision had been in force for all purposes and for all material times when the alleged offence was committed.

12. Clause (l) of Section 2 of the 2000 Act provides that "juvenile in conflict with law" means a "juvenile" who is alleged to have committed an offence and has not completed eighteenth year of age as on the date of commission of such offence. Section 20 also enables the court to consider and determine the juvenility of a person even after conviction by the regular court and also empowers the court, while maintaining the conviction, to set aside the sentence imposed and forward the case to the Juvenile Justice Board concerned for passing sentence in accordance with the provisions of the 2000 Act."

47. In the light of aforesaid dictum of Hon'ble Apex Court in Satya Deo (supra), it is manifest that the present case will be governed by the provision of Juvenile Justice (Care and Protection of Children) Act, 2000. In any case Juvenile Justice Board had held age of appellant below 16 years on the date of commission of offence ie he will be treated as juvenile both under the 1986 Act as well as 2000 Act and also under 2015 Act. The matter will be governed subject to the final order in present case as the appellant has been declared as juvenile in conflict with law by JJB on reference made by this Court during pendency of present appeal. He cannot be sentenced in view of prohibition contained in Section 16 of the Act, which provides as under:-

16. Order that may not be passed against juvenile

(1)Notwithstanding anything to the contrary contained in any other law for the time being in force, no juvenile in conflict with law shall be sentenced to death [or imprisonment for any term which may extend to imprisonment for life] [ Substituted by Act 33 of 2006, Section 13, for " or life imprisonment" (w.e.f. 22.8.2006).], or committed to prison in default of payment of fine or in default of furnishing security:Provided that where a juvenile who has attained the age of sixteen years has committed an offence and the Board is satisfied that the offence committed is so serious in nature or that his conduct and behaviour have been such that it would not be in his interest or in the interest of other juvenile in a special home to send him to such special home and that none of the other measures provided under this Act is suitable or sufficient, the Board may order the juvenile in conflict with law to be kept in such place of safety and in such manner as it thinks fit and shall report the case for the order of the State Government.(2)On receipt of a report from a Board under sub-section (1), the State Government may make such arrangement in respect of the juvenile as it deems proper and may order such juvenile to be kept under protective custody at such place and on such conditions as it thinks fit:[Provided that the period of detention so ordered shall not exceed in any case the maximum period provided under section 15 of this Act.] [Substituted by Act 33 of 2006, Section 13, for the proviso (w.e.f. 22.8.2006).]

Prior to its substitution, the proviso read as under:-Provided that the period of detention so ordered shall not exceed the maximum period of imprisonment to which the juvenile could have been sentenced for the offence committed.

Whereas in Section-15 of the Act, 2000 is is provided that orders that may be passed regarding juvenile:-

15. Order that may be passed regarding juvenile.

(1)Where a Board is satisfied on inquiry that a juvenile has committed an offence, then, notwithstanding anything to the contrary contained in any other law for the time being in force, the Board may, if it so thinks fit,(a)allow the juvenile to go home after advice or admonition following appropriate inquiry against and counselling to the parent or the guardian and the juvenile;(b)direct the juvenile to participate in group counselling and similar activities;(c)order the juvenile to perform community service;(d)order the parent of the juvenile or the juvenile himself to pay a fine, if he is over fourteen years of age and earns money;(e)direct the juvenile to be released on probation of good conduct and placed under the care of any parent, guardian or other fit person, on such parent, guardian or other fit person executing a bond, with or without surety, as the Board may require, for the good behaviour and well-being of the juvenile for any period not exceeding three years;(f)direct the juvenile to be released on probation of good conduct and placed under the care of any fit institution for the good behaviour and well-being of the juvenile for any period not exceeding three years;(g)[ make an order directing the juvenile to be sent to a special home for a period of three years: [ Substituted by Act 33 of 2006, Section 12, for Clause (g) (w.e.f. 22-8-2006).

]Provided that the Board may, if it is satisfied that having regard to the nature of the offence and the circumstances of the case, it is expedient so to do, for reasons to be recorded, reduce the period of stay to such period as it thinks fit. ](2)The Board shall obtain the social investigation report on juvenile either through a probation officer or a recognised voluntary organisation or otherwise, and shall take into consideration the findings of such report before passing an order.(3)Where an order under clause (d), clause (e) or clause (f) of sub-section (1) is made, the Board may, if it is of opinion that in the interests of the juvenile and of the public, it is expedient so to do, in addition make an order that the juvenile in conflict with law shall remain under the supervision of a probation officer named in the order during such period, not exceeding three years as may be specified therein, and may in such supervision order impose such conditions as it deems necessary for the due supervision of the juvenile in conflict with law:Provided that if at any time afterwards it appears to the Board on receiving a report from the probation officer or otherwise, that the juvenile in conflict with law has not been of good behaviour during the period of supervision or that the fit institution under whose care the juvenile was placed is no longer able or willing to ensure the good behaviour and well-being of the juvenile it may, after making such inquiry as it deems fit, order the juvenile in conflict with law to be sent to a special home.(4)The Board shall while making a supervision order under sub-section (3), explain to the juvenile and the parent, guardian or other fit person or fit institution, as the case may be under whose care the juvenile has been placed, the terms and conditions of the order and shall forthwith furnish one copy of the supervision order to the juvenile, the parent, guardian or other fit person or fit institution, as the case may be, the sureties, if any, and the probation officer.

48. The appellant has now become more than 50 years of age in his medical age determination report as manifest from the report of JJB of the year 2019, therefore, no useful purpose of law would be served by directing the juvenile to be sent to Special Home for a period of three years, taking into consideration the various judgements which may be passed regarding juvenile on the facts of the case as well as present situation of the applicant, who has been declared juvenile on the date of incident, is directed to be released on probation of good conduct under section 15(e) of the Act No. 56 of 2000, as stated above, on execution of personal bond and furnishing two sureties each in the like amount to the satisfaction of JJB, Rampur for a period of three years with undertaking to maintain good behaviour and peace and not indulgence in any criminal activity during period of probation and he may be placed under supervision of District Probation Officer, who will keep a watch on him during period of probation and will apprise the Board regarding any adverse fact appearing regarding appellant/ juvenile during this period. The bonds shall be filed before the Board within 10 days from the order of this Court, by the appellant and Board shall forward a copy of this order to the District Probation Officer for compliance.

49. Accordingly, conviction recorded by the trial court against the appellant for charge under section 302 IPC is upheld and affirmed. However, sentence stands set aside in view of above manner. Appeal is partly allowed accordingly.

50. Let the lower court record be sent back to the court concerned for necessary compliance.

Order Date :- 03.05.2024

Dhirendra/