Karnataka High Court
Channappa S/O Saibanna Sirawal vs The State on 25 July, 2025
Author: S. Sunil Dutt Yadav
Bench: S. Sunil Dutt Yadav
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CRL.A No. 200093 of 2019
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R
IN THE HIGH COURT OF KARNATAKA
KALABURAGI BENCH
DATED THIS THE 25TH DAY OF JULY, 2025
PRESENT
THE HON'BLE MR. JUSTICE S.SUNIL DUTT YADAV
AND
THE HON'BLE MR. JUSTICE RAMACHANDRA D. HUDDAR
CRIMINAL APPEAL NO.200093 OF 2019
BETWEEN:
CHANNAPPA
S/O SAIBANNA SIRAWAL
AGE: 30 YEARS
OCC: AGRICULTURE
R/O: HALISAGAR
TQ: SHAHAPUR
DIST: YADGIRI - 585 223.
Digitally
... APPELLANT
signed by
PRAKASH N
[BY SRI. VISHAL PRATAP SINGH, ADVOCATE]
Location:
HIGH COURT AND:
OF
KARNATAKA
THE STATE THROUGH
SHAHAPUR POLICE STATION
NOW REPRESENTED BY
ADDL. SPP, HCK
AT KALABURAGI - 585 103.
...RESPONDENT
[BY SRI SIDLING P. PATIL, ADDL. SPP
SRI. AMARESH S. ROJA, ADVOCATE (AMICUS CURIAE)]
THIS CRIMINAL APPEAL IS FILED UNDER SECTION
374(2) OF CPC, 1973, PRAYING TO CALL FOR THE RECORDS
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CRL.A No. 200093 of 2019
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OF THE COURTS BELOW AND SET ASIDE THE JUDGMENT OF
CONVICTION AND ORDER OF SENTENCE AND FINE IMPOSED
ON THE APPELLANT/ACCUSED, BY THE LEARNED SESSIONS
JUDGE, YADGIR, IN S.C.NO.40/2012, DATED 11.12.2018, FOR
THE OFFENCES PUNISHABLE U/S 307, 302 R/W 34 OF IPC, IN
VIEW OF THE REASONS AS STATED ABOVE, IN THE INTEREST
OF JUSTICE AND EQUITY.
THIS APPEAL PERTAINING TO KALABURAGI BENCH
HAVING BEEN HEARD AND RESERVED ON 30.06.2025
AND COMING ON FOR PRONOUNCEMENT OF JUDGMENT AT
PRINCIPAL BENCH, BENGALURU, THIS DAY, S. SUNIL DUTT
YADAV J., DELIVERED THE FOLLOWING:
CORAM: HON'BLE MR. JUSTICE S. SUNIL DUTT YADAV
AND
HON'BLE MR. JUSTICE RAMACHANDRA D. HUDDAR
CAV JUDGMENT
(PER: HON'BLE MR. JUSTICE S. SUNIL DUTT YADAV)
This Judgment has been divided into the following
Sections to facilitate analysis:
I BRIEF FACTS
II TRIAL COURT PROCEEDINGS
III PRESENT APPEAL PROCEEDINGS
III ANALYSIS:
A. CLAIM OF JUVENILITY
B. CONSIDERATION ON MERITS
C. ON SENTENCING
D. IDENTIFICATION OF JUVENILE ACCUSED IN ADULT PRISON
VIS- À-VIS PERSONAL LIBERTY
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I. BRIEF FACTS:
The present appeal is filed by accused No.2,
Channappa S/o Saibanna Sirawal, against the judgment of
conviction and order of sentence passed in
S.C. No.40/2012 by the learned Sessions Judge at Yadgiri.
As per the judgment dated 11.12.2018, the accused No.2
was convicted for the following offences:-
i) Convicted for offences punishable under Section
307 read with Section 34 of IPC and sentenced to
seven years of rigorous imprisonment and fine of
Rs.1,000/- and in default of payment of fine
amount was to undergo simple imprisonment for
three months;
ii) Convicted for offence punishable under Section
302 read with Section 34 of IPC. The accused No.2
was sentenced to life imprisonment and fine of
Rs.2,000/- and in default of payment of fine
amount was to undergo simple imprisonment for
three months.
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2. The facts made out are that the deceased
Bheemaraya S/o Mallappa Hosamani was the friend of the
complainant Bhimanna S/o Mahadevappa. Bheemaraya is
stated to have eloped with Lakshmi D/o Saibanna Sirawal
and performed marriage at Bengaluru, stayed there for
about a month and returned back to Halisagar. It is made
out from the facts that the deceased had gone to
Hyderabad along with his wife Lakshmi for coolie work. It
is stated that about 20 days prior to lodging of the
complaint, deceased Bheemaraya along with his wife had
returned to Halisagar village.
3. The case made out by the Prosecution is that
the father and brother of Lakshmi viz., Saibanna
S/o Devappa Sirawal (accused No.1) and Channappa S/o
Saibanna (accused No.2) and brother of Lakshmi had
nursed a grudge against the deceased Bheemaraya in light
of marriage with Lakshmi without the consent of her
family.
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4. On 06.04.2011, it is alleged that the deceased
Bheemaraya after having watched a film screened at the
Bhavani Talkies and was returning home at about 11:30
p.m., he was attacked by accused No.1 and accused No.2.
It is stated that the accused No.2 assaulted the deceased
with a Talawar on the neck, right elbow, left arm and left
knee causing grievous injury and thereafter the deceased
collapsed and succumbed to the injuries. It is further made
out that accused No.1 had assaulted the complainant with
a chopper on his right hand finger joint, head, and left arm
causing injury.
5. The complaint was thereafter filed regarding the
incident. It is the case of the prosecution that accused
Nos.3 and 4 had abetted the murder by accused No.1 and
2. The prosecution has followed the procedural requisites
of inquest mahazar, spot mahazar in the presence of
witnesses, Panchanama was drawn, objects seized were
sent to the FSL, spot sketch was prepared and charge
sheet was filed.
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6. The accused no.1 died prior to conclusion of
trial and proceedings stood abated as regards such
accused, while accused No.2 was in judicial custody and
the other accused Nos. 3 and 4 were enlarged on Court
bail.
II. TRIAL COURT PROCEEDINGS:
7. The charges were framed and during trial, the
prosecution had examined 16 witnesses as PW-1 to PW-16
and got marked Ex.P-1 to P-21 and M.O-1 to M.O-10. The
incriminating material appearing against the accused in
the evidence of PW-1 to PW-7 and PW-9 to PW-16 was
read over and explained to the accused No.2 to 4 who
have denied the same and however, did not lead any
defence evidence.
8. The trial Court had framed the following points
of consideration and the findings are as follows:-
"7) The points arisen for my determination are;
1. Whether the prosecution proves that on 6-4-
2011 at 11-45 p.m. when PW.1 Bheemanna
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along-with deceased Bheemaraya returning
back after seeing the film Kempegouda
Screened in Bhavani Talkies in Shahapur
accused No.2 along-with accused No.1 who is
reported dead joined together and in-
furtherance of their common intention near
newly under construction house of
Gurunathreddy, accused No.1 Saibanna has
assaulted PW.1 Bheemanna with chopper on
his right hand finger joint, head and left palm
and voluntarily caused grievous bleeding
injury to PW.1 with said Chopper which is the
weapon, if used as a weapon of offence, is
likely to cause death and committed an
attempt to murder so punishable under
Section 307 R/w Section 34 of Indian Penal
Code, beyond all reasonable doubts?
2. Whether the prosecution further proves that
on the alleged date, time and place, accused
No.2 along-with accused No.1 who is reported
dead in-furtherance of their common
intention, accused No.2 with an intention to
kill deceased Bheemaraya intentionally
committed his murder by assaulting on his
neck, right elbow, left arm and left knee with
Talawar, so punishable under Section 302 R/w
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Section 34 of Indian Penal Code, beyond all
reasonable doubts?
3. Whether the prosecution further proves that
on the alleged date, time and place, accused
No.2 along-with accused No.1 who is reported
dead in-furtherance of their common
intention, accused Nos.3 and 4 abetted the
accused Nos. 1 and 2 to commit the said
offences and the said offences were
committed by accused Nos. 1 and 2 in
consequences of abetment of accused Nos.3
and 4, so punishable under Section 109 R/w
Section 302 of Indian Penal Code, beyond all
reasonable doubts?
4. What order?
8) My answer to the above said points are as
under: -
Point No.1 :- In the affirmative
Point No.2 :- In the affirmative
Point No.3 :- In the negative
Point No.4 :- As per the final order for the
following;"
9. The trial Court after appreciating the evidence
has recorded a finding that the material on record would
indicate that the accused Nos.1 and 2 were not happy with
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deceased Bheemaraya eloping with Lakshmi and
celebrating their marriage without their consent and that
constituted the motive to attack the deceased.
10. It is recorded that the death was on account of
assault and culpable homicide amounting to murder.
Taking note of the Postmortem Report at Ex.P-16, it is
observed that the injuries had been proved through the
Doctor's evidence as well as through Inquest Panchanama
Ex.P4, Inquest Pancha P.W.3, complainant and by
deposition of other witnesses.
11. The evidence of P.W.1 who is the eye-witness
has been accepted and the minor discrepancy regarding
the timing of examining the complainant has been
considered to be non-fatal and it was held that it would
not wipe away the evidence led in, in light of the
complainant having suffered the injuries.
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Accordingly, the trial Court has recorded a finding
that accused Nos.1 and 2 with common intention tried to
commit murder.
12. The Court has also taken note of evidence of
Sharanappa S/o Thippanna Shiravaldavar - P.W.2, who
had reached the spot immediately after the incident and
accepted the evidence, as res gestae. It is in the evidence
of PW-2 that on the date of commission of offence he was
waiting at Ambedkar Circle and suddenly there was a
screaming sound from the side of one Gurunathreddy's
house. It is further stated that after reaching the place
PW-2 saw accused No.2 assaulting deceased Bheemaraya.
It is also stated that Panchanama was carried out in his
presence and M.O-1 and M.O-2 were recovered.
13. The evidence of PW-4 (father of the deceased),
PW-6 (mother of the deceased) and PW-7 (complainant is
the friend of brother of PW-7) has been taken note of
regarding the incident of the deceased eloping with
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Lakshmi, which has been taken note of as regards the
aspect of motive. The evidence of the complainant has
been believed taking note of injuries to the complainant
and accordingly, the trial Court had convicted the accused
No.2.
III. PRESENT APPEAL PROCEEDINGS:
14. The appeal has been filed assailing the
judgment on various grounds including that; PW-1 is an
interested witness being related to the deceased; that
PW-1 could not have witnessed the incident, as it was dark
and he was at a distance as per Ex.P-13 (sketch); that
PW-2 has turned hostile; recovery is not proved; that PW-
4, PW-6 and PW-7 are hearsay witnesses; that there are
discrepancies as regards the nature of injuries caused and
the object used to inflict the injuries.
15. During the pendency of the appeal, the accused
has filed an application I.A.No.2/2023 under Section 7A of
the Juvenile Justice Act, 2000 read with Section 482 of
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Cr.P.C. with a prayer to declare the appellant
Channabasappa @ Sharanabasava S/o. Saibanna Sirawal
to be a minor aged about 16 years as on the date of
commission of offence and to direct the respondent State
to release him.
16. The application is supported by the Affidavit of
the mother of the appellant. It is specifically asserted that
the appellant was born on 31.07.1994 and as on the date
of commission of offence, i.e. on 06.04.2011, the
appellant had completed 16 years 8 months and 6 days.
17. This Court had referred the matter for enquiry
as regards such application in its order dated 03.09.2024.
The Additional Registrar (Judicial) was directed to record
evidence on I.A.No.2/2023 and to make out a report
containing a record of evidence.
18. Accordingly, the following points for
consideration arise in the present appeal:-
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(i) WHETHER THE ACCUSED HAS MADE OUT GROUNDS
FOR CONSIDERATION OF HIS CLAIM OF JUVENILITY?
(ii) WHETHER THE JUDGMENT OF CONVICTION PASSED
BY THE TRIAL COURT NEEDS TO BE INTERFERED
WITH?
(iii) WHETHER THE ORDER ON SENTENCE PASSED BY
THE TRIAL COURT SURVIVES?
III. ANALYSIS
A. CLAIM OF JUVENILITY:
(i) WHETHER THE ACCUSED HAS MADE OUT GROUNDS
FOR CONSIDERATION OF HIS CLAIM OF JUVENILITY?
19. It is settled position that the claim of juvenility
can be raised before any Court1 and when such claim is
Judgment of The Apex Court in Raju v. State of Haryana - (2019) 14 SCC 401 -
"10. It is by now well settled, as was held in Hari Ram v. State of Rajasthan [Hari
Ram v. State of Rajasthan, (2009) 13 SCC 211 : (2010) 1 SCC (Cri) 987] , that in light of
Sections 2(k), 2(l), 7-A read with Section 20 of the 2000 Act as amended in 2006, a juvenile who
had not completed eighteen years on the date of commission of the offence is entitled to the
benefit of the 2000 Act (also see Mohan Mali v. State of M.P. [Mohan Mali v. State of M.P.,
(2010) 6 SCC 669 : (2010) 3 SCC (Cri) 208] ; Daya Nand v. State of Haryana [Daya
Nand v. State of Haryana, (2011) 2 SCC 224 : (2011) 1 SCC (Cri) 666] ; Dharambir v. State
(NCT) of Delhi [Dharambir v. State (NCT of Delhi), (2010) 5 SCC 344 : (2010) 2 SCC (Cri)
1274] ; Jitendra Singh v. State of U.P. [Jitendra Singh v. State of U.P., (2013) 11 SCC 193 :
(2013) 4 SCC (Cri) 725] ). It is equally well settled that the claim of juvenility can be raised at
any stage before any Court by an accused, including this Court, even after the final disposal of a
case, in terms of Section 7-A of the 2000 Act [see Dharambir v. State (NCT) of
Delhi [Dharambir v. State (NCT of Delhi), (2010) 5 SCC 344 : (2010) 2 SCC (Cri) 1274]
; Abuzar Hossain v. State of W.B. [Abuzar Hossain v. State of W.B., (2012) 10 SCC 489 : (2013)
1 SCC (Cri) 83] ; Jitendra Singh v. State of U.P. [Jitendra Singh v. State of U.P., (2013) 11 SCC
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raised, it is the duty of the Court to make an inquiry by
taking evidence as may be necessary to determine the age
of the person and is required to record a finding whether
the person is a juvenile, while also is required to state the
age, "as nearly as may be".
20. In terms of the proviso to Section 7A of the
Juvenile Justice (Care and Protection of Children) Act,
2000 [for short the "Act of 2000"] it is further stipulated
that the claim shall be determined in terms of the
provisions of the Act and the Rules made thereunder
irrespective of the juvenile having ceased to be so.
21. It is also clear from the mandate of Section 7A
of the Act of 2000, that once the Court finds a person to
be a juvenile as on the date of the commission of offence,
it is necessary that juvenile is required to be forwarded to
the Board for passing appropriate order, and sentence, if
193 : (2013) 4 SCC (Cri) 725] ; Abdul Razzaq v. State of U.P. [Abdul Razzaq v. State of U.P.,
(2015) 15 SCC 637 : (2016) 3 SCC (Cri) 324] ]."
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any, passed by the Court shall be deemed to have no
effect.
22. Section 7A of the Act of 2000 reads as follows:
"7A. 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 inquiry, 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-
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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."
23. The corresponding provision under the Juvenile
Justice (Care and Protection of Children) Act, 2015 [for
short "the Act of 2015"] is embodied under Section 9 of
the Act of 2015 and the relevant provision reads as
follows:
"9. Procedure to be followed by a Magistrate
who has not been empowered under this Act.--
(1) xxx
(2) In case a person alleged to have committed an
offence claims before a court other than a Board,
that the person is a child or was a child on the date
of commission of the offence, or if the court itself is
of the opinion that the person was a child on the
date of commission of the offence, the said court
shall make an inquiry, take such evidence as may be
necessary (but not an affidavit) to determine the age
of such person, and shall record a finding on the
matter, stating the age of the person as nearly as
may be: Provided that such a claim may be raised
before any court and it shall be recognised at any
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stage, even after final disposal of the case, and such
a claim shall be determined in accordance with the
provisions contained in this Act and the rules made
thereunder even if the person has ceased to be a
child on or before the date of commencement of this
Act.
(3) If the court finds that a person has committed an
offence and was a child on the date of commission of
such offence, it shall forward the child to the Board
for passing appropriate orders and the sentence, if
any, passed by the court shall be deemed to have no
effect.
(4) xxx"
24. Insofar as applicability of the Act of 2000 or
the Act of 2015 to the present factual matrix is concerned,
Section 25 of the Act of 2015 is of relevance which reads
as hereunder:
"25. Special provision in respect of pending
cases.--Notwithstanding anything contained in this
Act, all proceedings in respect of a child alleged or
found to be in conflict with law pending before any
Board or court on the date of commencement of this
Act, shall be continued in that Board or court as if
this Act had not been enacted."
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25. It is to be noticed that the date of commission
of offence was on 06.04.2011, the Act of 2015 came into
force on 15.01.2016 and the trial Court passed the
judgment on 11.12.2018 and accordingly, on the date of
commencement of Act of 2015, the trial was pending as on
which date the Act of 2015 was in operation. However,
insofar as the substantive law required to be taken note of
for determination of the present factual matrix, in light of
Section 25 of the 2015 Act, the matter is to be determined
as per law prevailing prior to the 2015 Act i.e., the Act of
2000. Such position of law has been affirmed by the Apex
Court in Satya Deo v. State of U.P.2 and the relevant
observations are as follows:
"22. However, what is important and relevant for
us is Section 25 of the 2015 Act which, as per the
headnote to that section, incorporates "special
provision in respect of pending cases" and reads:
"25. Special provision in respect of
pending cases.--Notwithstanding anything
contained in this Act, all proceedings in
(2020) 10 SCC 555
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respect of a child alleged or found to be in
conflict with law pending before any Board
or court on the date of commencement of
this Act, shall be continued in that Board or
court as if this Act had not been enacted."
26. Consequently, in light of Section 6 of the
General Clauses Act read with Section 25 of the
2015 Act, an accused cannot be denied his right to
be treated as a juvenile when he was less than
eighteen years of age at the time of commission of
the offence, a right which he acquired and has
fructified under the 2000 Act, even if the offence
was committed prior to enforcement of the 2000
Act on 1-4-2001. In terms of Section 25 of the
2015 Act, the 2000 Act would continue to apply
and govern the proceedings which were pending
when the 2015 Act was enforced..."
26. Insofar as the application filed under Section 7A
of the Act of 2000 requires to be enquired into and the
enquiry before the Appellate Court could be conducted by
an appropriate procedure, as the Act is silent regarding
the procedure to be followed.
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27. As the Court itself is required to record a
finding, this Court had referred the matter to the
Additional Registrar (Judicial), who is the rank of the
Sessions Judge to conduct the enquiry and submit a
report. The Appellate Court need not necessarily send it
to the Sessions Court for enquiry on report.
28. The enquiry then made by the Additional
Registrar (Judicial) has culminated in a report placed
before the Court. The witnesses examined were W.1 -
Nagamma w/o late Saibanna (mother of the accused
No.2), W.2 - Hussain Basha Gogi S/o. Chandasaheb,
Incharge Municipal Government Model Primary School,
Bhimarayana Gudi, W.3-Dr.Radha K.R, Radiologist,
Victoria Hospital, who has spoken as regards the X-ray
taken in the context of determination of age and has
spoken as regards the Age Estimation Report.
29. At the outset, it must be noticed that the
procedure regarding determination of age would be in
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terms of Rule 12 of the Juvenile Justice (Care and
Protection of Children) Rules, 2007. Rule 12(3) provides
for the evidence required to be taken note of for the
purpose of age determination.
30. Rule 12(3) reads as follows:-
"12. Procedure to be followed in determination
of Age.―
(1) xxx
(2) xxx
3) In every case concerning a child or juvenile in
conflict with law, the age determination inquiry shall
be conducted by the court or the Board or, as the
case may be, the Committee by seeking evidence
by obtaining -
(a) (i) the matriculation or equivalent certificates, if
available; and in the absence whereof;
(ii) the date of birth certificate from the school
(other than a play school) first attended; and in the
absence whereof;
(iii) the birth certificate given by a corporation or a
municipal authority or a panchayat;
(b) and only in the absence of either (i), (ii) or (iii)
of clause (a) above, the medical opinion will be
sought from a duly constituted Medical Board, which
will declare the age of the juvenile or child. In case
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exact assessment of the age cannot be done, the
Court or the Board or, as the case may be, the
Committee, for the reasons to be recorded by them,
may, if considered necessary, give benefit to the
child or juvenile by considering his/her age on lower
side within the margin of one year.
and, while passing orders in such case shall, after
taking into consideration such evidence as may be
available, or the medical opinion, as the case may
be, record a finding in respect of his age and either
of the evidence specified in any of the clauses (a)(i),
(ii), (iii) or in the absence whereof, clause (b) shall
be the conclusive proof of the age as regards such
child or the juvenile in conflict with law."
31. It is clear that the document at Rule 12(3)(a)(i)
if available, would exclude the document at Rule
12(3)(1)(ii) and similarly, if the document at Rule
12(3)(a)(ii) is available, the question of relying on the
document at Rule 12(3)(a)(iii) would not arise. Further,
in the absence of documents mentioned at Rule
12(3)(a)(i), (ii) and (iii), the question of reliance on
medical opinion from a duly constituted Medical Board is
required.
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32. The observation made by the Apex Court in
Jarnail Singh v. State of Haryana3, is as follows:
"23. Even though Rule 12 is strictly applicable only to
determine the age of a child in conflict with law, we
are of the view that the aforesaid statutory provision
should be the basis for determining age, even of a
child who is a victim of crime. For, in our view, there
is hardly any difference insofar as the issue of
minority is concerned, between a child in conflict
with law, and a child who is a victim of crime.
Therefore, in our considered opinion, it would be just
and appropriate to apply Rule 12 of the 2007 Rules,
to determine the age of the prosecutrix VW, PW 6.
The manner of determining age conclusively has
been expressed in sub-rule (3) of Rule 12 extracted
above. Under the aforesaid provision, the age of a
child is ascertained by adopting the first available
basis out of a number of options postulated in Rule
12(3). If, in the scheme of options under Rule 12(3),
an option is expressed in a preceding clause, it has
overriding effect over an option expressed in a
subsequent clause. The highest rated option
available would conclusively determine the age of a
minor. In the scheme of Rule 12(3), matriculation (or
equivalent) certificate of the child concerned is the
highest rated option. In case, the said certificate is
(2013) 7 SCC 263
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available, no other evidence can be relied upon. Only
in the absence of the said certificate, Rule 12(3)
envisages consideration of the date of birth entered
in the school first attended by the child. In case such
an entry of date of birth is available, the date of birth
depicted therein is liable to be treated as final and
conclusive, and no other material is to be relied
upon. Only in the absence of such entry, Rule 12(3)
postulates reliance on a birth certificate issued by a
corporation or a municipal authority or a panchayat.
Yet again, if such a certificate is available, then no
other material whatsoever is to be taken into
consideration for determining the age of the child
concerned, as the said certificate would conclusively
determine the age of the child. It is only in the
absence of any of the aforesaid, that Rule 12(3)
postulates the determination of age of the child
concerned, on the basis of medical opinion."
33. In the evidence, in terms of Rule 12(3)(a)(ii),
the Date of Birth Certificate issued from the School first
attended would be a relevant document. Ex.C2 is the
Certificate issued by the Government School and signed by
the Head Master, Government Model Primary School,
Bhimarayana Gudi. The age of Sharanabasava S/o
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Saibanna is mentioned as 31.07.1994 and the period of
education is shown as First Standard to Third Standard.
34. The Head Master, Government Model Primary
School, Bhimarayana Gudi is examined and states that he
was working as a Co-Teacher in the School and as on the
date of his examination was also the In-charge Head
Master. He certifies that Ex.C2 has been issued and
authenticated by the School. It is further clarified that
though the Certificate was issued on 18.09.2021 by
Eramma Gumashetty, she has retired as on 31.05.2022.
It is also averred that Ex.C2 relates to Sharanabasava S/o
Saibanna, who had studied from First Standard to Third
Standard. The relevant Register of the School
authenticated and certified by the Authority is marked as
Ex.C3, which would indicate that Sharanabasava S/o
Saibanna finds a mention in the Register and the Date of
Birth is recorded as 31.07.1994.
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35. The said witness though had been subjected to
cross-examination, there is nothing fatal to the assertion
regarding age that has been elicited.
36. The mother of the appellant has asserted
specifically that her son was also called by the name
Sharanabasava. The cross-examination by the learned
Government Advocate on such aspect is absent. Thus, the
assertion of the nickname (Channappa @ Channabasava)
stands unchallenged.
37. At this juncture, it is relevant to take note of
the propositions laid down by the Apex Court that
unchallenged evidence is to be accepted as true if not
cross-examined and such evidence ought to be believed by
the Court. The Apex Court in Laxmibai v.
Bhagwantbuva4, has made the following observations:
"40. Furthermore, there cannot be any dispute
with respect to the settled legal proposition, that if a
(2013) 4 SCC 97
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party wishes to raise any doubt as regards the
correctness of the statement of a witness, the said
witness must be given an opportunity to explain his
statement by drawing his attention to that part of it,
which has been objected to by the other party, as
being untrue. Without this, it is not possible to
impeach his credibility. Such a law has been
advanced in view of the statutory provisions
enshrined in Section 138 of the Evidence Act, 1872,
which enable the opposite party to cross-examine a
witness as regards information tendered in evidence
by him during his initial examination-in-chief, and
the scope of this provision stands enlarged by
Section 146 of the Evidence Act, which permits a
witness to be questioned, inter alia, in order to test
his veracity. Thereafter, the unchallenged part of his
evidence is to be relied upon, for the reason that it is
impossible for the witness to explain or elaborate
upon any doubts as regards the same, in the
absence of questions put to him with respect to the
circumstances which indicate that the version of
events provided by him is not fit to be believed, and
the witness himself, is unworthy of credit. Thus, if a
party intends to impeach a witness, he must provide
adequate opportunity to the witness in the witness
box, to give a full and proper explanation. The same
is essential to ensure fair play and fairness in dealing
with witnesses. (See Khem Chand v. State of
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H.P. [1994 Supp (1) SCC 7 : 1994 SCC (Cri) 212 :
AIR 1994 SC 226] , State of U.P. v. Nahar
Singh [(1998) 3 SCC 561 : 1998 SCC (Cri) 850 : AIR
1998 SC 1328] , Rajinder Pershad v. Darshana
Devi [(2001) 7 SCC 69 : AIR 2001 SC 3207]
and Sunil Kumar v. State of Rajasthan [(2005) 9 SCC
283 : 2005 SCC (Cri) 1230 : AIR 2005 SC 1096] .)
(emphasis supplied)
38. It is specifically seen that the name of the
father is shown as Saibanna and date in Ex.C2 is shown as
31.07.1994 and Certificate is issued by the Head Master of
Government Model Primary School who has been
examined. The Extract of Register of Admission also
reveals the date of birth of Sharanabasava as 31.07.1994
and father's name as Saibanna. If that were to be so, as
on the date of commission of offence, i.e. on 07.04.2011,
the age of the appellant would have been 17 years, taking
note of his date of birth, as per Ex.C2 dated 31.07.1994.
39. Accordingly, in terms of Rule 12(3)(a)(ii), the
document at Ex.C2 would by itself be sufficient to accept
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as determinative age mentioned in the document, which is
corroborated by documentary and oral evidence. It is to
be also noted that in terms of Rule 12(3)(b), in the
absence of documents under Rule 12(3)(a), resort could
be had to medical opinion by a Medical Board.
40. It is necessary to keep in mind that this Court
by order dated 19.06.2024 had directed for Ossification
Test. The order which is explanatory reads as follows:-
"Learned counsel for the appellant has filed
IA.No.2/2023 under Section 7A of Juvenile Justice
(Care and Protection of Children) Act, r/w 482 of
Cr.P.C., stating that the appellant-accused was
minor at the time of alleged incident. To
substantiate his stand, he placed the copy of school
certificate. However, learned Addl. SPP obtained
the certificate from Central Prison in respect of the
age of the victim which depicts that the accused is
presently aged about 28 years, if that is so, as
rightly contended by the learned counsel for the
appellant, the appellant must be aged about 15-16
years as on the date of the incident. Hence, learned
Addl.SPP is directed to place authenticated
certificate with regard to the age of the
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appellant/accused by examining him before the
Radiologist by conducting bone ossification test and
submit the report before this Court on 02.07.2024.
List this matter on 02.07.2024."
41. The Report of the Radiologist as per order dated
19.06.2024 has been produced and marked in the enquiry
ordered regarding juvenility as Ex.C1 and the said report
would indicate that as on 23.09.2024, the estimated age is
greater than (>)25 years and less than (<) 30 years. If
that were to be so and age of the appellant is taken as 30
years as on 23.09.2024, the age of the appellant as on the
date of the incident, i.e. on 07.11.2011 would have been
17 years.
42. The Doctor has been examined as Witness No.3
and has spoken regarding the Age Estimation Report
marked as Ex.C1 and identified the signature of the
witness as Ex.C1(a).
43. It is necessary to notice that the Additional
Special Public Prosecutor has obtained Certificate from the
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Prison Authorities which is the nominal role of the prisoner
which document is dated 03.04.2024, which is filed
alongwith the memo on 23.04.2024. "The present age (in
years) and occupation" at Item No.4 is described as
"agriculture - 28 years". If that were to be so, even as per
the document of the Prison Authorities, the age of the
appellant would have been 14 years.
44. Accordingly, the entirety of the evidence
including the evidence of document as contemplated under
12(3)(a)(ii) could be sufficient to take note of the age of
the appellant as 16 years 8 months 6 days and thus, he is
to be considered to be a juvenile.
B. CONSIDERATION ON MERITS:
(ii) WHETHER THE JUDGMENT OF THE TRIAL COURT
NEEDS TO BE INTERFERED WITH?
45. It is to be noticed that the incident was stated
to have occurred on 06.04.2011 at 23:45 hours in the
First Information Report registered in the early hours of
07.05.2011. The version in the complaint was that
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Bheemaraya was attacked by Channappa the appellant -
accused No.2 and Saibanna his father - accused No.1. It
is the further case of the Prosecution that accused No.2
had attacked the deceased fatally by a big Talawar. It is
the further case that accused No.1 attacked the
complainant by "machhu (ªÀ
ªÀÄZÀÄÑ)"
Ñ on the fingers and left
hand.
46. The evidence of PW-1 who is the friend of the
deceased and that the deceased was attacked by accused
No.2 by a sharp instrument and died on the spot. It is
further sated that he himself was attacked by accused
No.1 and suffered injuries on the head, left hand and
fingers of the right hand. It has been deposed that P.W.1
and the deceased were returning after watching a movie,
the deceased was attacked by the accused No.1 - father of
Lakshmi and accused No.2 - brother of Lakshmi. It has
come out from the evidence that Lakshmi and deceased
eloped and married. Consequently, the family of Lakshmi
i.e., accused No.1 - father and accused No.2 - brother had
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nursed animosity against the deceased and accordingly,
constituted the motive.
47. This evidence of PW-1 has withstood
cross-examination and there are no substantial
contradictions elicited so as to water down the evidence
led. The evidence of the injured witness requires due
weightage.
48. PW-2 has also deposed as an eye-witness and
has affirmed to the attack of the deceased by accused No.
2 Channappa. PW-2 however, does not support the
Panchanama and accordingly, has been cross-examined on
such aspect, but the evidence of PW-2 as regards attack of
the deceased which remains unshaken can be relied upon.
This evidence of PW-2 corroborates with evidence of PW-1.
49. It is relevant to take note of the observations
made by the Constitution Bench of the Apex Court in
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Neeraj Dutta v. State (Government of NCT of Delhi)5
that the testimony of hostile witness can be considered, if
it is corroborated by other evidence. The relevant
observations made are as follows:
"87. Therefore, this Court cautioned that even if a
witness is treated as "hostile" and is cross-examined,
his evidence cannot be written off altogether but must
be considered with due care and circumspection and
that part of the testimony which is creditworthy must
be considered and acted upon. It is for the Judge as a
matter of prudence to consider the extent of evidence
which is creditworthy for the purpose of proof of the
case. In other words, the fact that a witness has been
declared "hostile" does not result in an automatic
rejection of his evidence. Even, the evidence of a
"hostile witness" if it finds corroboration from the
facts of the case may be taken into account while
judging the guilt of the accused. Thus, there is no
legal bar to raise a conviction upon a "hostile witness"
testimony if corroborated by other reliable evidence.
50. Insofar as the motive is concerned, PW-4
(father of the deceased), PW-6 (mother of the deceased)
(2023) 4 SCC 731
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and PW-7 who belong to the family of the deceased have
supported the version of animosity between the family of
deceased and the accused in light of deceased having
eloped with Lakshmi and accordingly, the accused had
nursed grudge against the deceased.
51. The injuries referred to in the postmortem have
been proved through the Doctor's evidence and
accordingly, we find the appreciation of evidence by the
trial Court, which does not call for any interference taking
note that the learned Trial Judge had the benefit of
noticing the demeanor of witness.
C. ON SENTENCING:
(iii) WHETHER THE ORDER ON SENTENCE PASSED BY
THE TRIAL COURT SURVIVES?
52. In terms of Section 20 of the 2000 Act, once
the Court finds that the juvenile has committed an offence
and records a finding for the purpose of sentencing, the
juvenile is to be referred to the Board which is required to
pass order in respect of the juvenile.
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53. In the present case, the judgment of conviction
stands affirmed and such position culminating in upholding
the order of conviction fits into the scheme of the Act and
does not call for alteration. However, the aspect of
sentencing is a matter that requires consideration. No
doubt, sentencing is by the Board as is statutorily
mandated and any order of sentence by the Court could be
the one passed without jurisdiction. The question however
that requires to be answered is that where the juvenile
had been subjected to punishment graver in measure than
what has been mandated, whether question of passing an
order of sentence as is permissible under Section 15 of the
Juvenile Justice Act 2000 would still subsist.
54. In terms of the judgment of conviction and
order of sentence, the trial Court has sentenced the
accused to undergo life imprisonment and fine of
Rs.2000/- as regards the offence under Section 302 read
with 34 of IPC as regards the offence vis-à-vis the
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deceased. Insofar as the offence under Section 307 read
with section 34 of IPC with respect to the complainant, the
sentence of seven years of rigorous imprisonment and fine
of Rs.1,000/- has been ordered. The appellant has
undergone the sentence by way of judicial custody for a
period from 11.04.2011 till he was released on bail as per
order dated 31.07.2024.
55. Wherever the graver of sentence has been
served, the question of considering the order on sentence
which is qualitatively different as provided for under
Section 15 of the Act of 2000 does not arise. The
sentence undergone would in law be subsumed in the
order of sentence that would have been passed by the
Board under Section 15 of the Act of 2000. The nature of
the sentence that maybe passed under Section 15 is as
follows:
"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
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contained in any other law for the time being in
force, the Board may, if it thinks so 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,- i. in the case of juvenile,
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over seventeen years but less than eighteen years
of age for a period of not less than two years;
56. Technically, the order of sentence passed by
the Court of Sessions would be an illegal order of sentence
contrary to limitations imposed in awarding punishment
under section 15 of the Act of 2000. The setting aside of
the order of sentence may not arise in the peculiar facts of
the case but may require declaration that sentence served
would be subsumed in the sentence that could have been
passed under Section 15 of the Act of 2000 in light of the
discussion made above.
57. Any order of sentence would require passing of
fresh order of sentence under Section 15 of the Act of
2000, which however may not arise now at this point of
time, as the appellant has undergone sentence of graver
measure.
58. The highest sentence that could be imposed
under the sentence provided was to direct the juvenile to
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be sent to a Special Home for a period of three years in
terms of Section 15(1)(g) of the Act. However, the order
of sentence imposed was that of life imprisonment, which
sentence has been partially complied with by undergoing
judicial custody for a period of nearly 13 years is clearly
beyond the maximum sentence that could have been
passed under Section 15 of the Act of 2000.
59. Accordingly, no fresh order of sentence need be
passed except for a declaration that the sentence imposed
by the trial Court is in law to be construed as sentence
imposed under Section 15 of the Act of 2000 and the order
of sentence is to be accordingly modified.
60. It is to be noticed that this Court by its order
dated 31.07.2024 had raised questions for consideration
which are extracted hereunder:
(1) What is the nature of enquiry as
contemplated under "the Juvenile Justice
(Care and Protection of Children) Act, 2015 as
regards the assertion that the appellant is a
juvenile?
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a. Whether the inquiry can be made by
the Appellate Court wherein such
assertion is made and relief sought.
b. Whether the inquiry contemplates
that the matter be remitted to the
Sessions Court.
(2) What would be the consequences of
amendment in 2015 to the Juvenile Justice
Act as regards the appellant's further
protection, though the offence itself
committed pre 2015 amendment.
(3) What happens to the conviction and sentence
if there is a finding eventually that the
appellant is juvenile taking note of the
observations of the Apex Court in Karan @
Fatiya vs. State of Madhya Pradesh 6.
(4) In the event the conviction is upheld and as
regards sentence to be imposed whether the
matter has to be referred to Juvenile Justice
Board.
61. In light of the discussion made supra the
questions raised by this order vide its order dated
31.07.2024 are answered as follows:
(a) Insofar as the nature of enquiry that is to be
conducted for determination of the age of the juvenile
refer supra at paras 29 to 32.
(2023) 5 SCC 504
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(b) Insofar as the consequences of amendment to
the Juvenile Justice Act, 2015 is concerned, it is answered
supra at paras 22 to 25.
(c) The aspect of sentencing is discussed supra at
point 'C' paras 52 to 59.
D. IDENTIFICATION OF JUVENILE ACCUSED IN ADULT
PRISON VIS-À-VIS PERSONAL LIBERTY
62. It is pertinent to note that the consideration of
the appeal proceedings revolved around the claim of
juvenility by the accused. Although the accused filed an
application under Section 7A of the Act of 2000 claiming to
be a juvenile only on 19.09.2023, it is crucial to note that
the State Authorities were aware of the age of the accused
and the juvenile status, as evident from the certificate -
'Nominal Roll of Prison', the contents of which are referred
to at para 43 supra.
63. Accordingly, the State Authorities could have
taken timely action on the accused's juvenile status, which
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would have led to a different set of proceedings, in
accordance with law.
64. Further, Article 21 of the Constitution of India
mandates that no person shall be deprived of life and
liberty except according to the procedure established
under law. The procedure prescribed under the Act of
2000 upon finding a juvenile offender as guilty is that
provided for under Section 15. In the present case, the
fact that the petitioner is a juvenile and has been
sentenced to life imprisonment and has served the said
sentence partially by being in judicial custody for about 13
years, there has been gross violation of the rights under
Article 21 of the Constitution. The Apex Court in Vinod
Katara v. State of Uttar Pradesh7 has held that
"...There can be no cavil in saying that lodging juveniles in
adult prisons amounts to deprivation of their personal
liberty on multiple aspects."
(2023) 15 SCC 210 - see Para 2
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65. Noticing the fact that the accused despite being
a juvenile at the time of commission of offence, has been
tried before the Court as an adult and received a harsh
sentence, it would be relevant to observe that the
identification of juvenility must be at the point of first
contact, be it, when the Police Authorities come upon an
offender and entertain prima facie doubt as to whether the
offender is a juvenile or not. The second layer of
protection for a juvenile offender would be at the stage of
remand by the Magistrate. At both such stages, the Police
Authorities or the Magistrate as the case may be, may
take steps to verify age of the offender by collecting
appropriate records which would throw light on the age.
Such process may be continued by the Police or the
Magistrate till verification is complete independent of the
legal system dealing with the offender in the interregnum.
Noticing the unfortunate situation where juvenile has
been wrongly treated as an adult, it would be relevant to
take note of the newly enacted rules framed by the State
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i.e., 'The Karnataka State Juvenile Justice (Care and
Protection of Children) Rules, 2025. The Rules framed
thereunder would assist the Authorities in identifying the
accused who though are juveniles find themselves in adult
prisons and thereafter appropriate action may be taken.
The Rules which are of relevance are extracted
hereunder:-
"6. Additional functions of the Board.- The Board
shall perform the following additional functions,
namely:-
(xiv) conduct inspection of jails meant for adults under
item (m) of subsection (3) of section 8 of the Act once
in every thirty days to check, if any person who is
lodged in such jails is a child then take immediate
measures for transfer of such a child in following
manner namely:-
(a) Such inspection shall be carried out by the
entire Board or at least one Social Worker member
and the Principal Magistrate or two Social Worker
members. The Board may include one medical
officer, one representative each from the District
Legal Services Authority and the District Child
Protection Unit, and one representative of a non-
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governmental organization as part of the inspection
team. At least two members of the inspection team
shall be women. Such inspection shall be carried
out in the jail inspection format prescribed by the
Directorate of Child Protection.
(b) Through such inspection, the Board shall
identify such undertrials and convicted prisoners
lodged in the jail who may probably be a "child" on
the date of alleged commission of offence.
(c) During such inspection, the concerned jail
authority shall produce any record of the inmates
as may be requested and shall facilitate easy and
smooth access to the inmates in the jail. For
interaction with female and transgender inmates,
appropriate arrangements shall be made by the jail
Superintendent, in case it is not possible for the
Board to carry out inspection of the female wards
of the jail.
(d) When the Board finds a person lodged in jail
who may be a child on the date of commission of
offence, it shall make a reference for each such
person separately to the court concerned, in Form
1B, within three working days from the date of
such inspection. In case of an under-trial prisoner,
such reference shall be made to the Court where
case is pending at present and in case of a
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convicted prisoner, such reference shall be made to
the Court which disposed of the case.
(e) In case of all such persons who are proved to
have been wrongly incarcerated in jail as adults,
the Board shall record a statement on the date of
first production of such person in order to identify
officials responsible for the lapse. If any police or
jail official is found to be responsible for willful
negligence in this regard, after due opportunity to
such police officer to be heard by the Board, order
may be made by the Board directing the
registration of first information report against such
police official under section 166 Bharatiya Nyaya
Sanhita 2023 (Central Act 45 of 2023) of the Indian
Penal Code or any other relevant provision, as
applicable, or recommend initiation of disciplinary
action.
(f) Any Board to which a case is transferred after
the person previously lodged in the jail has been
proved to be a child, may award adequate
compensation to be paid within thirty days from the
date of the transfer order, by the State
Government from the Juvenile Justice Fund to such
person for having been wrongly incarcerated in jail.
(xv) conduct surprise inspection of police stations
within its jurisdiction, at least once every month, to
satisfy itself that children are not being kept in police
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lock up, not being detained illegally at any police
station and that provisions of the Act and these rules
are being complied with. In case of any non-compliance
of the Act and these rules being noticed, the Board
shall pass appropriate orders to the concerned
authority for addressing such non-compliance;"
66. Accordingly, the points raised for consideration
are answered as follows:-
Point No.(i) - Affirmative
Point No.(ii) - Negative
Point No.(iii) - Negative
67. In light of the above, the appeal is disposed
off.
Consequently, I.A.2/2023 filed under Section 7A of
the Act of 2000 read with Section 482 of Cr.P.C. seeking
for declaration that the appellant accused No.2 to be a
juvenile as on the date of commission of offence is
allowed.
68. Though the judgment of the trial Court is
affirmed on merits, in light of allowing I.A.No.2/2023 and
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in light of discussion as above, the order on sentence
cannot be given effect to, with a further direction that in
light of the sentence already served, the question of
referring the matter for awarding of sentence to the
Juvenile Justice Board in terms of Section 20 of Act of
2000 does not arise. The sentence undergone is to be
treated to have subsumed any sentence that otherwise
could have been passed under Section 15 of Act of 2000.
69. Insofar as the accused/appellant having
undergone sentence of imprisonment of 13 years, though
he was a juvenile, it would be appropriate to direct the
Juvenile Justice board to pass appropriate order for award
of compensation of Rs.50,000/- (Rupees Fifty thousand
only) in terms of Rule 6 (xiv) (f) of The Karnataka State
Juvenile Justice (Care and Protection of Children) Rules,
2025, without embarking of any fresh enquiry regarding
compensation or juvenility in light of detailed consideration
made above.
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70. Copy of the judgment shall be marked to the
Chairman, Juvenile Justice Committee, High Court of
Karnataka, who may take note of the observations made
in para-65 (supra) to take appropriate action. Further copy
to be marked to the Juvenile Justice Board, Yadgiri.
Sd/-
(S. SUNIL DUTT YADAV)
JUDGE
Sd/-
(RAMACHANDRA D. HUDDAR)
JUDGE
VGR/VP
