MOHD SATTAR Vs. STATE OF ANDHRA PRADESH

JUDGEMENT

(1.) THE appellant-accused was tried in SC No.136 of 2005 for the offence under Section 302 of IPC on the file of the Court of Additional Metropolitan Sessions Judge, Cyberabad, Ranga Reddy District and he was convicted for the offence under Section 302 of IPC and sentenced to suffer rigorous imprisonment for life and also to pay a fine of Rs.500/- in default to suffer simple imprisonment for two months, by judgment dated 3.2.2006. Aggrieved by the same, the sole accused filed this criminal appeal on various grounds. THE learned Counsel appearing for the appellant have given up the argument to consider the case on merits but only confines his argument that the Court below ought to have sent the accused he being a juvenile to borstal school for reformation and rehabilitation, as he is a adolescent offender. THE accused has not chosen the plea either at the time of committal or during the course of trial in the said case and his age was shown as 20 years in the charge sheet and the judgment.

(2.) WHETHER the appellant is a juvenile or not and a ground has been taken in the appeal stating that he is a juvenile and during the course of hearing the appeal and when the matter was listed for hearing on 17.11.2008 the learned Counsel appearing for the appellant contended that the accused is a adolescent offender below 20 years as on the date of conviction and therefore he should be sent to Borstal School to serve the sentence. Though such plea is not taken during the course of trial before the learned Sessions Judge, who convicted him under Section 302 of IPC. In the charge-sheet also the age of the appellant was mentioned as 20 years but whether he was aged 20 years as on the date of conviction is not forthcoming. Hence, the District Probation Officer, Ranga Reddy District was appointed under the provisions of Probation of Offenders Act and directed to submit a report with regard to the age and antecedents of the accused as on the date of his conviction. If the age of the appellant is not recorded in any school register his age should be ascertained from the panel of doctors and the report to be submitted before the Court. Pursuant to the said order a report was sent by the District Probation Officer, Ranga Reddy District without specifying the age of the accused and without ascertaining the age by referring the accused to the panel of doctors as directed by this Court on 17.11.2009. Thereafter another direction was issued on 12.6.2009 directing the District Probation Officer, Ranga Reddy District to ascertain the age of the accused. On examination, the panel of doctors opined for the said purpose and submits a report with regard to the age of the accused as on the date of the offence. Pursuant to the said order, dated 12.6.2009, the panel of doctors i.e., Department of Forensic Medicine, Osmania Medial College, Hyderabad and Assistant Professor of Forensic Medicine, Osmania Medical College examined the accused at the requisition of the Superintendent of Central Prison, Cherlapalli and conducted Radiology Examination and opined that the accused- appellant Mohammed Sattar son of Mohammed Sarwar is aged about 23 years as on the date of examination i.e., 19.3.2010 and his age is 18 years as on the date of the offence i.e., 4.4.2005.

(3.) AS the correctness of the estimate of the age as given in the report is neither doubted nor questioned by the State, we hold that the appellant is a juvenile as on the date of commission of offence. If that be so, whether the appellant is entitled for the benefit of Juvenile Justice (Care and Protection of Children) Act, 2000. Though such a plea has not been raised before the Court below, though plea for the first time raised before this Court. The Supreme Court in Para No.10 observed as hereunder: In Gopinath Ghosh v. State of West Bengal, [1984] Supp.SCC 228, an argument was raised on behalf of the appellant therein for the first time in the Supreme Court that on the date of an offence the appellant was aged below 18 years and was, therefore, a 'child' within the meaning of the expression 'child' as contained in the West Bengal Children Act, 1959 and, therefore, the Court had no jurisdiction to sentence him to suffer imprisonment, after holding a trial. In that case, this Court framed an issue as to what was the age of the appellant on the date of an offence for which he had been tried and convicted and remitted the issue to the learned Sessions Judge, Madia to return a finding on that question. The learned Sessions Judge after hearing both the sides certified his findings that the appellant Gopinath Ghosh was aged between 16-17 years on the date of the offence. This Court then after referring to various provisions of the Act opined that Section 24 of the Act takes away the jurisdiction of the Court to impose a sentence of imprisonment, unless the case falls under the proviso and that Section 25 of the Act forbids any trial of juvenile delinquent and that only an inquiry can be held in his case in accordance with provisions of the Cr.PC, for the trial of a summons case. This Court noticed that unfortunately the appellant had never questioned the jurisdiction of the Sessions Court which tried him for the offence. Nor was any such plea raised in the appeal against his conviction and sentence in the High Court. It was for the first time that the contention was raised before the Supreme Court. The Court then observed: In view of the underlying intendment and beneficial provisions of the Act read with Clause (f) of Article 39 of the Constitution which provides that the State shall direct its policy towards securing that children are given opportunities and facilities to develop in a healthy manner and in conditions of freedom and dignity and that childhood and youth are protected against exploitation and against moral and material abandonment, we consider it proper not to allow a technical condition that thin contention is being raised in this Court for the first time to thwart the benefit of the provisions being extended to the appellant, if he was otherwise entitled to it. (Emphasis ours) and then went on to direct: The next question is : what should be the sequel to our decision? The appellant has been in prison for some years. But neither his antecedents nor the background of his family are before us. It is difficult for us to gauge how the juvenile Court would have dealt with him. Therefore, we direct that the appellant be released on bail forthwith by the learned Additional Sessions Judge, Nadia," and then proceed in accordance with law keeping in view the provisions of the Act.