Jharkhand High Court
Istekhar Mian vs The State Of Bihar Now Jharkhand on 1 August, 2025
Author: Rongon Mukhopadhyay
Bench: Rongon Mukhopadhyay
2025:JHHC:21316-DB
IN THE HIGH COURT OF JHARKHAND AT RANCHI
Cr. Appeal (DB) No. 231 of 1997 (R)
[Against the judgment and order of conviction and sentence dated
28.08.1997 passed by learned Fourth Additional Sessions Judge
Palamau, Daltonganj in Sessions Trial No. 25 of 1991]
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Istekhar Mian, son of Nijam Pentar, resident of village-Shahpur, P.S.
Chainpur, District-Palamau ... ... Appellant
Versus
The State of Bihar Now Jharkhand ... ... Respondent
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PRESENT
HON'BLE MR. JUSTICE RONGON MUKHOPADHYAY
HON'BLE MR. JUSTICE PRADEEP KUMAR SRIVASTAVA
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For the Appellant : Mr. Nilesh Kumar, Advocate
For the State : Mrs. Nehala Sharmin, Spl.P.P.
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C.A.V. on 16.06.2025 Pronounced on 01/08/2025
Per Pradeep Kumar Srivastava
Heard Mr. Nilesh Kumar, learned counsel for the appellant as well
as Mrs. Nehala Sharmin, learned Spl. P.P. for the State.
2. The instant criminal appeal is preferred for setting aside the
judgment and order of conviction and sentence passed by Fourth
Additional Sessions Judge, Palamau at Daltonganj in Sessions Trial Case
No. 25/1991 dated 28.08.1997 whereby and whereunder the appellant
has been held guilty for the offence under Section 302/34 of I.P.C. and
sentenced to undergo R.I. for life.
3. Learned counsel for the appellant without touching the merits of
the impugned judgment has confined his argument towards the plea of
juvenility of the appellant. It is submitted that the date of occurrence of
this case was 16.05.1990 and under the Juvenile Justice Act, 1986, the
age of the appellant was assessed by the Board of Doctors and a prayer
was made before the learned C.J.M. during investigation of this case for
medical board examination of the appellant for age assessment and
medical examination report was received showing the age of the
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appellant to be between 16-17 years. It is submitted that since he was not
found below the age of 16 years as per the provisions under Section 18
of Juvenile Justice Act, 1986, his case was committed to the Court of
Sessions after submission of the charge-sheet for trial. It is further
submitted that on the date of judgment also, the age of the appellant was
assessed to be 22 years indicating that he was about 15-18 years age on
the date of occurrence. The appellant has taken a plea of juvenility in the
memo of appeal filed by him at the earlier stage at para 7, 8 and 9. It is
further alleged that the appellant filed an interim application being I.A.
No. 8991 of 2023 for conducting an enquiry with respect to juvenility of
the appellant under Section 7-A of the Juvenile Justice (Care and
Protection of Children) Act, 2000 which was allowed vide order dated
30.10.2023 and a direction was given to the Juvenile Justice Board
Palamau at Daltonganj for assessment of the age of the appellant on the
date of occurrence. It was further directed that the enquiry must be held
under the provisions of Juvenile Justice (Care and Protection of
Children) Act, 2015 and rules framed thereunder. It is further submitted
that in compliance of the aforesaid order, an enquiry was conducted by
the Juvenile Justice Board and report was submitted through Letter No.
21 dated 22.01.2024. After conclusion of enquiry, the juvenile justice
board vide order dated 11.12.2023, on the basis of oral as well as
documentary evidence, assessed the date of birth of the appellant to be
02.01.1975 as such on the date of occurrence i.e. 16.05.1990, the
appellant's age was 15 years 4 months 12 days and he was juvenile under
the said Act. It is further submitted that there is catena of judgments of
the Hon'ble Apex Court that the Juvenile Justice (Care and Protection of
Children) Act, 2000 is applicable to all persons below the age of 18 years
on the date of occurrence even after enactment of Juvenile Justice (Care
and Protection of Children) Act, 2015. In this connection, learned
counsel for the appellant has placed reliance upon the following reported
judgments:
i. Pratap Singh Vs. State of Jharkhand, (2005) 3 SCC
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551, at Para 21 and 36;
ii. Hari Ram Vs. State of Rajasthan (2009) 13 SCC 211,
at Para 59 and 69
iii. Dharambir Vs. State (NCT of Delhi) & Anr., (2010) 5
scc 344, at Para 11 and 15
iv. Daya Nand Vs. State of Haryana, (2011) 2 SCC 224,
at Para 13 and 14
v. Mukarrab & Ors. Vs. State of Uttar Pradesh, (2017)
2 SCC 2010, at Para 12, 14, 23 , 27 and 29.
4. It is further submitted that under the Juvenile Justice (Care and
Protection of Children) Act, 2015, there is a special provision for trial of
juveniles in between the age of 16-18 years if they are found having
sufficient intellect to commit the "heinous offence". Since the appellant
has been found below 16 years of age on the date of occurrence i.e. 15 th
Years 4 Months 12 days, the provision of Section 15 of the Juvenile
Justice (Care and Protection of Children) Act, 2015 is also not applicable
against the appellant. It is further submitted that in the course of the trial.
the appellant has also remained in custody for more than three years.
Therefore, maintaining his conviction, he may be released forthwith
setting aside the sentence of life imprisonment passed against him.
5. Per contra, the learned Spl. P.P. has submitted that at the very
initial stage of the proceeding, the age of appellant was assessed through
Medical Board by ossification examination and he was found to be not
juvenile under Juvenile Justice Act, 1986, as his age was assessed to be
16-17 years. The appellant has neither challenged the order passed by
learned C.J.M. dated 31.05.1990 in this regard, nor he has raised such
plea at the trial of the case and for taking undue advantage of juvenility
started raising this point again at the appellate stage although learned
Spl. P.P. has fairly admitted that order passed by Juvenile Justice Board
after age assessment enquiry of the appellant dated 11.12.2023 has not
been challenged by preferring any appeal and no objection has been
raised against the enquiry report. It is further submitted that the appellant
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is not entitled for plea of juvenility and no argument has been advanced
on merits of judgment, hence, no interference is required in the
impugned judgment and the appeal is fit to be dismissed.
6. For better appreciation of the rival contentions of learned
counsels, a brief resume of factual aspect of this case requires to be
discussed.
Factual Matrix:
7. Prosecution story is based upon the fardbeyan of one Etwariya
Devi, P.W.-1 recorded by S.I. Triveni Rai, Officer-in-charge, Chainpur
Police Station on 17.05.1990 at about 02:30 AM stating inter alia that
she has grown ladies finger crop in the field of Nijam Pentar situated at
Semartand on the basis of sharing the profits. It is further alleged that on
previous Monday at about 7:00 pm, sons of Nijam Pentar namely
Istekhar Mian and Ibrar Mian came to her house and threatened to her
son Vijay Choudhary stating that he is not looking after the field
properly, if he will not look after the crops properly, he will be killed.
The informant replied that her husband will look after the crops instead
of her son then, they went away. It is further stated that on Wednesday at
about 7:00 pm, the above accused persons again came to her house
searching her son Vijay Choudhary and started abusing and scolding her
saying that her son is still not looking after the field and went away. It is
further alleged that on 16.05.1990 at night at about 11:30 pm, while
informant was sleeping in front of her house, she heard Halla raised by
her daughter-in-law, Chhatni Devi who came out from the room, woke
her and told that Istekhar Mian and Ibrar Mian and two other persons
have entered inside the house and assaulting to her husband. The
informant came out from the house and saw that Ibrar Mian and
Istekhar Mian and two unknown others were fleeing away. It is
further alleged that Ibrar Mian had an iron Bhujali in his hand, thereafter,
she went inside her house and saw that her son Vijay Choudhary was
lying dead under pool of blood at his neck. She raised alarm then her
husband Raj Kumar Choudhary and other villagers Bari Choudhary,
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Jagdish Choudhary and others rushed to her house and she narrated the
above incident to them. The informant has claimed that her son Vijay
Choudhary was killed by Ibrar Mian and Istekhar Mian and two
unknown persons by giving deadly assault through Bhujali.
On the basis of above information, Chainpur P.S. Case No. 56 of
1990 dated 17.05.1990 was registered for the offences under Section
302/34 IPC and charge of investigation was undertaken by S.I. Triveni
Rai, Officer-in-charge himself. Further, investigation of the case was
conducted by A.S.I., M. Rai, who after conclusion of investigation
submitted chargesheet against the named accused persons Istekhar Mian
(Appellant) continuing investigation against unknown accused persons.
8. It appears that in the course of investigation, on request of accused
persons, Medial Board was constituted for assessment of their age on the
plea of juvenility. The learned C.J.M. vide order dated 31.05.1990
received the Medical Board Report of the accused persons found the
accused Ibrar Mian to be juvenile in conflict with law and his case was
separated and sent to Juvenile Justice Board for enquiry and disposal.
The appellant Istekhar Mian was found aged about 16-17 years old on
the date of occurrence, hence, as per provision of Juvenile Justice Act,
1986, he was not held juvenile in conflict with law and his case was
committed to the Court of Sessions after submission of the chargesheet
where S.T. Case No. 25/1991 was registered.
9. After conclusion of trial, impugned judgment of conviction and
sentence of the appellant was passed by the learned Trial Court which
has been assailed in this appeal.
10. The appellant's basic plea relates to claim of juvenility on the date
of occurrence. The overall argument of the appellant is that he is entitled
to be treated as juvenile in conflict with law as per provisions of Juvenile
Justice (Care and Protection of Children) Act, 2000 and the Act of 2015.
It is undisputed that during investigation as per Medical Board Age
Assessment Report, the appellant was found in between 16-17 years. The
appellant during pendency of this appeal again took steps for age
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assessment enquiry by the Juvenile Justice Board by filing I.A. No. 8991
of 2023 which was allowed vide order dated 30.10.2023. The report of
Juvenile Justice Board is also available on record showing the age of the
appellant on the date of occurrence to be 15 years 4 months 12 days and
his date of birth as 02.01.1975.
11. The question of applicability of the provisions of Act, 2000 to the
juvenile in conflict with law under the provisions of Juvenile Justice Act,
1986, we have to consider the principles laid down by the Hon'ble Apex
Court as relied upon by learned counsel for the appellant in the case of
"Hari Ram Vs. State of Rajasthan & Anr., (2009) 13 SCC 211". It
was held that the problem which frequently arises after the enactment of
the Juvenile Justice Act, 2000 is regarding the application of the
definition of "juvenile" as given under Sections 2(k) and 2(l) for
offences committed prior to 01/04/2001 when the Juvenile Justice Act,
2000 came into force. It was laid down that as per Sections 2(k), 2(l) and
7-A of the Act, 2000 and rule 12 of the 2007 Rules read with Section 20
of the Juvenile Justice Act, 2000 as amended in 2006, a juvenile who had
not completed 18 years on the date of commission of the offence is
also entitled to the benefits of the Juvenile Justice Act, 2000, as if the
provisions of Section 2(k) had always been in existence even during
the operation of Act, 1986. The said position has been re-emphasized
by virtue of the amendments introduced in Section 20 of 2000 Act,
whereby the proviso and explanation were added to the Section 20,
which make it even more explicit that in all pending cases, including
trial, revision, appeal and any other criminal proceedings in respect of a
juvenile in conflict with law, the determination of juvenility of such a
juvenile would be in terms of Section 2(l) of the 2000 Act, and the
provisions of the Act would apply as if the said provision had been in
force when the alleged offence was committed.
It was further held that Section 7-A of the Juvenile Justice Act,
2000, made provision for the claim of juvenility to be raised before any
Court at any stage, as has been done in the present case, and such claim
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was required to be determined in terms of provisions contained in the
2000 Act and the rules framed thereunder, even if the juvenile has ceased
to be so on or before the date of commencement of the Act. The law has
now crystalized on a conjoint reading of Section 2(k), 2(l), 7-A, 20 and
49 read with rule 12 of 1998 places beyond all doubt that all persons
who were at the age of 18 years on the date of commission of the offence
even prior to 01.04.2001 would be treated as juveniles even if the claim
of juvenility was raised after they had attained the age of 18 years on or
before the date of commencement of the Act and were undergoing
sentence upon being convicted.
12. In the case of "Daya Nand Vs. State of Haryana, (2011) 2 SCC
224", the above principles of law was also reiterated by the Hon'ble
Apex Court wherein it was held as para 15 as under:
"15. In view of the Juvenile Justice Act as it stands after
the amendments introduced into it and following the
decision in Hari Ram and the later decisions, the appellant
cannot be kept in prison to undergo the sentence imposed
by the Additional Sessions Judge and affirmed by the High
Court. The sentence imposed against the appellant is set
aside and he is directed to be released from prison. He is
further directed to be produced before the Juvenile Justice
Board, Narnaul, for passing appropriate orders in
accordance with the provisions of the Juvenile Justice Act."
13. In Cr. App. (DB) No. 93 of 2022, Sobhnath Bhogta @ Somnath
Pradhan & Anr. Vs. The State of Jharkhand, while disposing of I.A.
No. 7803 of 2023, Division Bench of this Court has observed that "in
order to refer the matter for adjudication by the Children's Court three
conditions need to be satisfied under Section 15 of the J.J. Act. The
conditions are: (i) Child is above 16 years, (ii) He should be accused of a
heinous offence and (iii) Board should have conducted a preliminary
assessment with regard to his mental and physical capacity that he had
the ability to understand the consequence of committing the said offence.
In the present case, the first two conditions have been satisfied, but since
the plea was not taken at the stage of trial, therefore, no psychological
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assessment could be done by the Board. We find force in the argument
advanced on behalf of the State that in case of a child who has crossed
the age of 18 years, it will not be feasible for the Board to conduct
psychological assessment of the child regarding his capacity to
understand the consequence of his act at the time of commission of
offence."
14. It was further observed that there exists a difference between a
child below 16 years, and those who are accused of or found guilty for a
heinous offence and above 16 years. In former case, any judgment or
order passed is liable to be set aside if he found to be below 16 years of
age at any stage. Same is not the case with those who have completed 16
years of age and are accused of heinous offence. After the enactment
of 2015 Act i.e. Act, the age of juvenility remains to be 18 years, but a
sub-classification has been created. A child who is below 18 years, is
considered as a juvenile, however, some changes have been introduced
by virtue of said Act. Irrespective of the crime being heinous, if the child
in conflict with law is less than 16 years, proceeding would be conducted
before the Juvenile Justice Board. In a case where child is above 16
years and up to 18 years and the offence alleged to be committed is
heinous as per Section 18 of the Act, a preliminary assessment has to be
done in terms of Section 15 of the Act. If the child above the age of 16
years commits a heinous offence, then the Board shall conduct
preliminary assessment with respect to his physical and mental ability
and his ability to understand the consequences of the offence and the
circumstances, under which he had committed the offence and may pass
an order in terms of sub-section 3 of Section 18 of the Act. They are in
case found to know the nature and consequence of their act, to be tried as
an adult under the provisions of Cr.P.C. If the plea of juvenility is not
taken at the stage of investigation, enquiry or trial and is taken for the
first time at the appellate stage, their mental capacity cannot be assessed
and therefore, there is no point in setting aside the judgment of
conviction and referring the matter to the Board under Section 15 for
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assessment into heinous offences. As no psychological assessment can
be done after the age of 18 years, such an exercise will be an exercise in
futility.
15. Now reverting back to the fundamental aspects of present case,
there remains no doubt that the appellant has been found below 16 years
of age as per enquiry conducted by Juvenile Justice Board under Section
7-A of the Juvenile Justice (Care and Protection) Act, 2000. The date of
occurrence is 16.05.1990 and the prevailing law was Juvenile Justice
Act, 1986 which has undergone substantial changes through subsequent
legislation i.e. Juvenile Justice (Care and Protection) Act, 2000 which
came into effect from 01.04.2001 and Juvenile Justice (Care and
Protection) Act, 2015. The principles of law as discussed above, in clear
terms, provides that the plea of juvenility can be raised at any stage of
the proceeding and even before the Hon'ble Supreme Court. In the
instant case, the appellant was examined by Medical Board at the very
initial stage of the proceeding and his age was assessed in between 16-18
years so that he was prevented from benefit of juvenile in conflict with
law. It is also obvious that the Act of 2000 through subsequent
amendment was made applicable to all persons who were below 18 years
age on the date of commission of offence under the Juvenile Justice Act,
1986. The age assessment of the appellant by the Juvenile Justice Board
on direction of this Court after thorough enquiry and on the basis of
School Leaving Certificate and other evidence has been found to be
below 16 years. Therefore, the provisions of Section 15 of the Juvenile
Justice (Care and Protection of Children) Act, 2015 which envisages to
conduct an enquiry as regards his mental and physical capacity that he
had the ability to understand the consequence of committing the offence,
is not required at all in the instant case even if the offence alleged to be
committed by the appellant has been found heinous in nature i.e. murder.
16. We after careful study of record and perusal of evidence find that
P.W.-1, Etwaria Devi and P.W.-4, Chhatni Devi are eye witnesses of
occurrence, who have directly proved the presence and participations of
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appellant in commission of murder of deceased. As such on merits, there
is no perversity in the impugned judgment of conviction of appellant.
17. In view of the above discussion and reasons, we are of the firm
view that the trial of the appellant as an adult is vitiated on the ground
that the appellant was a juvenile in conflict with law on the date of
commission of the offence. Therefore, keeping in view the principles of
law laid down by the Hon'ble Apex Court in the case of "Daya Nand
Vs. State of Haryana, (2011) 2 SCC 224", the conviction of appellant
passed by the learned Trial Court is upheld but the sentence of
imprisonment for life is hereby set aside. The appellant is on bail. He is
directed to appear before the Juvenile Justice Board, Palamau at
Daltonganj within three months from the date of this judgment for
passing appropriate order in view of the provisions of Section 18 of the
Juvenile Justice Act, 2015.
18. In view of the above discussion and reasons, this appeal stands
disposed of.
19. Pending I.A., if any, stands disposed of.
(RONGON MUKHOPADHYAY, J.)
(PRADEEP KUMAR SRIVASTAVA, J.)
Jharkhand High Court
Dated 01/08/2025
Basant/ A. F. R.
10 Cr. Appeal (D.B.) No. 231 of 1997(R)
