Telangana High Court
Kotagiri Ganga Prasad vs The State Of Ap., Rep By Its P.P on 11 January, 2024
Author: K.Lakshman
Bench: K. Lakshman
HON'BLE SRI JUSTICE K. LAKSHMAN
AND
HON'BLE SMT. JUSTICE K. SUJANA
CRIMINAL APPEAL No.167 OF 2014
JUDGMENT:
(per Hon'ble Sri Justice K.Lakshman)
Heard Sri K. Vasanth Rao, learned counsel for appellant and
Sri Muthyala Muralidhar, learned Additional public Prosecutor
appearing on behalf of the respondent.
2. This Criminal Appeal is filed against the judgment dated
31.12.2013 in S.C.No.242 of 2013 passed by learned Sessions
Judge, Nizamabad Division, Nizamabad. He was convicted for the
offence under Section - 302 of IPC and sentenced him to undergo
life imprisonment. He is in jail from 31.12.2013.
3. It is relevant to note that one Sri Chilaka Satyam had filed
writ petition No.39592 of 2017 seeking to declare the appellant
herein - 'adolescent offender' confined in the 3rd respondent jail is
entitled to be transferred to the 4th respondent Borstal School,
Nizamabad, and to direct respondent No.1 therein to forthwith
transfer the 'adolescent offender' from the 3rd respondent jail to the 2 KLJ & SKS,J Crl.A. No.167 of 2014
4th respondent Borstal School in accordance with section 10-A of
the Andhra Pradesh Borstal School Act, 1925/Corresponding
Telangana Act.
4. According to him, the appellant is an adolescent offender
as on the date of incident and he has filed copy of S.S.C. Marks
Memo issued by the Andhra Pradesh Open School Society,
Hyderabad, through its Coordinator, Z.P.H.S. (G), Bheemgal,
Nizamabad. Considering the said aspects and also the provisions
of the Telangana Borstal School Act, more particularly, Sections -
2 (1), 8 and 10-A of the Act, we have considered the age of the
appellant herein as on the date of conviction as 20 years 6 months
and 11 days, as on the date of representation dated 17.07.2017, he
was 24 years 7 days, as on the date of filing writ petition, he was
24 years, 5 months one day and as on the date of deciding writ
petition, he was 30 years 6 months.
5. Considering the said aspects and also Section 8 of the Act
and principle laid down in several judgments referred therein, we
have dismissed the writ petition on the ground that, the appellant
herein - adolescent offender is not entitled for benefit under the 3 KLJ & SKS,J Crl.A. No.167 of 2014
provisions of the Act. However, we have held that as on the date
of conviction, he was 20 years 6 months and 11 days.
6. In Jayendra v. State of U.P. 1, the Apex Court considered
the provisions of the U.P. Children Act and also the age of the
accused therein as 18 years, sustained the conviction against the
accused therein and quashed the sentence imposed by the trial
Court. The Apex Court also directed the accused therein to release
forthwith.
7. In Pradeep Kumar v. State of U.P. 2, a Three-Judge
Bench of the Apex Court considering the age of the adolescent
offender therein as on the date of conviction judgment as 30 years
held that there is no question of sending the adolescent offender to
an approved school under the U.P. Children Act for detention.
Thus, the Apex Court while confirming the conviction of the
appellant therein under all the charges framed against him quashed
the sentences awarded against him and directed to release him
forthwith.
1 . (1981) 4 SCC 149 2 . 1995 Supp. (4) SCC 419 4 KLJ & SKS,J Crl.A. No.167 of 2014
8. In Manda Raju @ Mandula Raju v. State of A.P. 3 a
Division Bench of the combined High Court of Andhra Pradesh at
Hyderabad considering the age of the appellant therein which was
less than 18 years as on the date of commission of offences held
that accused therein is entitled to be released from the Central
Prison, kept under protection of his mother in accordance with
Section - 15 of Juvenile Justice Act, 2000. But, the facts of the
present case are slightly different. The appellant herein -
adolescent offender was 20 years 6 months and 11 days as on the
date of conviction.
9. In Bhoop Ram v. State of U.P. 4 the Apex Court
considered the question whether the appellant who had been
convicted and sentenced along with certain adult accused should
have been treated as a child within the meaning of Section 2(4) of
the U.P. Children Act, 1951 and sent to the approved school for
detention therein till he attained the age of 18 years instead of
being sentenced to undergo imprisonment in jail. The Court after
considering the material on record, the appellant therein could not
3 . 2011 (2) ALD (Crl.) 669 AP (DB) 4 . (1989) 3 SCC 1 5 KLJ & SKS,J Crl.A. No.167 of 2014
have completed 16 years age as on the date when the offence was
committed and held that the appellant should have been dealt under
the UP Children Act instead of being sentenced to imprisonment
when he was convicted by the Sessions Judge under various
grounds. Since, the appellant had by the time the appeal was heard
by the Apex Court, reached the age of more than 28 years, the
Apex Court sustained the conviction of the appellant therein under
all the charges framed against him, but however quashed the
sentence awarded to him and direct his release forthwith.
10. In R. Krishna v. Govt. of A.P. 5, learned Single Judge
of Andhra Pradesh High Court relying on a Division Bench
judgment in Public Prosecutor (AP) v. Mohan Rao 6 and also
Division Bench Judgment of A.P. High Court in State of Andhra
Pradesh v. Komalla Krishnaiah 7, Bhola Bhagat v. State of
Bihar 8, Jayendra1 and Bhoop Ram4 held in paragraph Nos.19 and
20 considered the scope of Sections - 8 and 10 of the Act and the
same are extracted below:
5
. 2006 (1) ALD (Crl.) 834 (AP) 6 . 1963 (2) An.W.R. 479 7 . MANU/AP/0098 8 . (1997) 8 SCC 720 6 KLJ & SKS,J Crl.A. No.167 of 2014
"It is true that under Section 8 of the Act while passing a sentence of detention in a Borstal School, the term of detention shall not be extended beyond the date on which the adolescent offender will attain the age of 23 years. However, Section 10-A of the Act does not contain any such restriction and there is no other provision under the Act which either expressly or by way of implication extends the restriction under Section 8 of the Act to the power conferred on the Government to transfer an offender to a Borstal School under Section 10-A of the Act. On the other hand, Subsection (2) of Section 10-A of the Act which was inserted under A.P. Borstal Schools (Amendment) Act, 2001 (Act No.3 of 2001) mandates that an offender who is transferred to the Borstal School under Sub-section (1) of Section 10-A of the Act shall be detained for a minimum period of two years. Sub-section (2) of Section 10-A of the Act which starts with a non-obstante clause makes it clear that notwithstanding the restriction imposed under Section 8 of the Act the term of detention of an offender who is transferred to a Borstal School under Section 10-A of the Act shall be for a minimum period of two years. Even the Statement of Objects and Reasons to the 7 KLJ & SKS,J Crl.A. No.167 of 2014
Amendment Act, 2001 (Act No.3 of 2001) show that the insertion of Sub-section (2) is only for the purpose of making it clear that the term of detention of an offender who is transferred to a Borstal School under Section 10-A of the Act shall be for a minimum period of two years notwithstanding the requirement of Section 8 of the Act that no inmate can be detained in a Borstal School after attaining the age of 23 years. Hence, it cannot be said that there is any embargo to order transfer of the offender to a Borstal School under Section 10-
A of the Act even where the offender has crossed the age of 23 years.
For the aforesaid reasons and since admittedly the petitioner's son was less than 21 years of age by the date of the offence as well as the date of conviction, as observed by the Supreme Court in BHOLA BHAGAT'S case (3 supra), it would be appropriate to extend the benefit of Socially Oriented Legislation to him thereby affording him an opportunity to reform himself and to reclaim as useful member of the society. Hence, in my considered opinion, instead of compelling the son of the petitioner to undergo remaining sentence in a regular prison in the company of hardened criminals, it would be just and proper to transfer him to a Borstal 8 KLJ & SKS,J Crl.A. No.167 of 2014
School for detention for a period of two years for reformation.
11. In Komalla Krishnaiah7, the Division Bench
considering the age of the adolescent offender therein i.e., 20 years
03 months as on the date of conviction, the State Government
rejected his request twice and that he is going to attain age of 23
years shortly, in the interest of justice directed the State
Government to transfer the offender to Borstal School in exercise
of its power under Article - 226 of the Constitution of India. But,
in the present case, the facts are slightly different. As discussed
supra, as on the date of making representation dated 17.07.2017
and as on the date of filing writ petition, the adolescent offender
crossed 23 years.
12. In Superintendent, Central Prison, Chenchalguda,
Hyderabad v. C. Narasimhulu 9, the Division Bench relying on
the principle laid down in Komalla Krishnaiah7 and also
considering the age of the adolescent offender therein was 20
years, directed to transfer the adolescent offender to Borstal
9 . 1999 (1) ALT 107 DB 9 KLJ & SKS,J Crl.A. No.167 of 2014
School. As discussed supra, in the present case, the facts are
slightly different and the adolescent offender crossed 23 years as
on the date of making representation and filing writ petition.
13. In Krishna Bhagwan v. State of Bihar 10, the Full
Bench of Patna High Court held that the question relating to the
determination of the age of the accused and the belated raising of
that plea and opined that though the normal rule is that a plea
unless it goes to the very root of the jurisdiction should not be
allowed to be taken at the appellate stage especially when it
requires investigation into a question of fact but a plea that the
accused in question was a "child" within the meaning of the Act
can be entertained at the appellate stage also and should not be
overlooked on technical grounds.
14. Relying on the said principle, in Bhola Bhagat8 also
considering the age of the adolescent offender therein was 18
years, that they were children and also on examination of the
provisions of the Bihar Children Act, 1970, the Apex Court held
10 . AIR 1989 Pat 217 10 KLJ & SKS,J Crl.A. No.167 of 2014
that they shall be given benefit under Bihar Children Act, 1970
which is social beneficial enactment.
15. Considering the principles laid down in the aforesaid
judgments and also the fact that the appellant herein - adolescent
offender was aged 20 years 6 months 11 months as on the date of
conviction i.e. 31.12.2013, that he was 24 years 17 days as on the
date of submission of representation requesting the State to send
him to Borstal School and that he has already crossed 23 years, we
have dismissed the writ petition.
16. The allegation against the appellant herein is that he has
killed his father. PW.1, who is his mother, specifically deposed
that the appellant herein has killed her husband who was deaf and
dump. She is an eye witness. She has narrated the entire incident.
Nothing contra was elicited from her during cross-examination.
PW.2, neighbor, also supported the prosecution. PW.4 is the panch
witness for recovery of MOs.1 to 4. PW.5, cousin of the accused,
deposed that appellant herein made extra judicial confession before
him and nothing contra was elicited from him. Thus, relying on
the depositions of the said witnesses including medical evidence, 11 KLJ & SKS,J Crl.A. No.167 of 2014
Ex.P6 - PME report and Ex.P7 - FSL Report, the trial Court
recorded conviction against the appellant herein vide impugned
judgment dated 31.12.2023.
17. Thus, the prosecution proved the motive and guilt of the
accused beyond reasonable doubt by producing cogent evidence. It
is a reasoned order and well-founded. Therefore, we are not
inclined to set aside the conviction recorded against the appellant
herein - accused vide impugned judgment.
18. However, as discussed above, the appellant herein -
adolescent offender was aged 20 years 6 months 11 months as on
the date of conviction i.e., 31.12.2013. As discussed above, as on
the date of making representation dated 17.07.2017, he was 24
years 17 days and as on the date of filing of the aforesaid writ
petition he was 24 years 5 months 1 day and as on the date of
pronouncement of the order in the said writ petition he was 30
years 6 months, we have dismissed the said writ petition as we
were not inclined to send the appellant herein to Borstal School.
We gave a specific finding that he was 20 years 6 months 11 days
as on the date of conviction. In view of the principle laid down in 12 KLJ & SKS,J Crl.A. No.167 of 2014
the aforesaid judgments and discussion supra, we are inclined to set
aside the sentence imposed on him.
19. Thus, this appeal is allowed in part confirming the
conviction recorded against the appellant herein, and setting aside
the sentence imposed on him. He is in jail from 07.02.2013 to
12.11.2013 and from 31.12.2013 onwards. Therefore, the
Superintendent, District Jail, Nizamabad, is directed to set the
appellant herein - accused free forthwith if he is no longer required
in any other criminal case.
As a sequel, the miscellaneous applications, if any, pending
in the appeal shall stand closed.
_________________ K. LAKSHMAN, J
_________________ K. SUJANA, J 11th January, 2024 Chs/Mgr
