LAWS(PAT)-2000-7-98

GOPAL NAG Vs. STATE OF BIHAR

Decided On July 14, 2000
Gopal Nag And Anr. Appellant
V/S
STATE OF BIHAR Respondents

JUDGEMENT

(1.) A division Bench of this Court, while hearing the instant appeal, doubted the correctness of the Full Bench judgment of this Court in the case of Krishna Bhagwan v. State of Bihar (1991) 1 BLJR 321, referred the matter to a larger Bench to consider the correctness of the judgment of the Full Bench in view of the law laid down by the Supreme Court in the case of Gopinath Ghosh v. State of West Bengal . The Division Bench of this Court is of the view that although in Krishna Bhagwan case (supra), the Full Bench relied upon the decision of the Supreme Court in Gopinath Ghosh case but it has omitted to consider paragraph 11 of the judgment of the Supreme Court. This is how the matter has been placed before us for answering the reference.

(2.) IN the instant case, two appellants have been convicted under Sections 302/34, I.P.C. and sentenced to imprisonment for life. Appellant No. 1, Gopal Nag is the son of appellant No. 2, Lai Mohan Nag. It was argued before the Division Bench that there is clinching evidence of fact that appellant No. 1 was minor at the time of occurrence which took place on 26.12.1991. It was contended that according to assessment made by the trial Judge, the age of the appellant Gopal Nag was about 18 years on 14.12.1992 when his statement was recorded under Section 313, Cr.P.C. Accordingly, appellant No. 1 was below 16 years at the time of occurrence of the offence. It was, therefore, contended before the Division Bench that the entire trial leading to the conviction of appellant No. 1 is, therefore, without jurisdiction.

(3.) IN the Krishna Bhagwan case (supra), fact of the case was that the appellant was convicted, under Sections 302, 307, 324, IPC, and was sentenced to undergo imprisonment for life under Section 302, IPC, 10 years under Section 307, IPC and 2 years under Section 324, I.P.C. No plea was taken in that case also during the trial that appellant was child within the meaning of Bihar Children Act, 1982 on the date of occurrence. The plea was taken for the first time before this Court during the hearing of the appeal. The Bench hearing the appeal had referred the case for consideration of the following questions by the Full Bench: