KALINATH MUNDA Vs. STATE OF BIHAR

JUDGEMENT

(1.) Kalinath Munda, the sole appellant stands convicted under section 302 read with Section 149 of the Indian Penal Code and sentenced to undergo imprisonment for life.

(2.) The sole point urged by Mr. Jha, learned counsel appearing on behalf of the appellant is that the appellant was a boy of fourteen years of age at the time of the commission of the offence and therefore was a child, as defined under Section 2 (d) of the Bihar Children Act. 1982. His submission is that the appellant could not have been tried along with his other co-accused in view of the provisions of the Act. The offence was committed by the appellant in the year 1972. Certain ordinances of the year 1979 which culminated in the enactment of the aforementioned Act, were pressed into service to raise the plea that on the date of the commission of the offence the appellant had not attained the age of sixteen years and that he could only be tried in a Children's Court, envisaged to be set up under Section 5 of the Act. We find that this contention was raised only at the appellate stage before the high Court and not before the Court of Session. The High Court repelled the contention on the ground that the Children's Court had factually not been constituted under the Act and therefore the provisions of the Act could not have been followed in the case of the appellant. It also took the view that his regular trial under the Code of Criminal Procedure was thus in order.

(3.) Nothing was brought to the notice of the High Court that there was a children's Court established in the area where the offence was committed or tried. Years have gone by and nothing has been pointed out even to us as to whether any Children's Court stood constituted for the purposes of the Act when the appellant was put to trial. One of the preconditions for invoking the children's Court is the determination of the age of the offender as to whether he would be a child within the meaning of the Act or not. It has barely been pointed out that in the judgment of the Court of Session the appellant has been described as twenty-two years of age and on that basis, he would be fourteen years of age on the date of the commission of the offence. That description would not per se entitle the appellant to the protection of the Act. Something more is needed. In the absence of any material to support the case of the appellant, we have no option but to reject the contention. Besides the occurrence took place in the year 1972 and twenty-two years have gone by. Had there been any positive evidence, we would have been apprised of it and now at this stage to undertake an inquiry of this kind shall be next to impossible. On this score, there is no merit in this appeal. Besides no other point has been urged. We therefore reject the appeal.