NANLABHAI KUKABHAI RATHWA Vs. STATE OF GUJARAT

JUDGEMENT

(1.) The appellant has challenged his conviction under section 302 of the Indian Penal Code [hereinafter referred to as 'the IPC'] and also the consequential order of sentence directing him to suffer rigorous imprisonment [RI] for life and to pay fine of Rs.2,000/=, in default to undergo further RI for two months. He has been convicted by the Ld. Addl. Judge & Fast Track Court Judge, Chhota Udepur, in Sessions Case No. 55 of 2003 by judgment dated 17th May, 2004.

(2.) Facts constituting the present prosecution, in short, can be stated as under :-

(3.) At the time of preliminary hearing of the appeal for admission and hearing of the application filed under Section 389 of the Cr. P.C. by the appellant, it was submitted by Mr. Kalathil, learned advocate appearing for the appellant that the appellant was juvenile at the time when the offence was committed and he ought to have been tried in accordance with the provisions of the Juvenile Justice [Care and Protection of Children] Act, 2000 [hereinafter referred to as 'the Act']. According to him, this fact was never noticed at the time of trial by all concerned and it came to light only after the trial was over and the judgment was pronounced. Having regard to this submission made before us and in view of the decision of the Apex Court rendered in the case of Gopinath Ghosh v/s. State of West Bengal reported in 1984 (Suppl.) S.C.C. p.228, we had directed the trial Court vide order dated 20th July, 2004 passed in the present appeal for determining the following issue:-