DEVENDRA YADAV Vs. STATE OF BIHAR

JUDGEMENT

(1.) THE sale appellant of this appeal and one Sahdeo Yadav, who were appellant in Criminal Appeal NO.22 of 1985. were convicted by trial court under section 302 read with section 149. of the Indian Penal Code and each one of them was sentenced to undergo rigorous imprisonment for life.

(2.) IN this appeal, a point was taken for the, first time before this Court that on the date of occurrence, that is, on 18.9.1982, the appellant was a juvenile. Therefore, his trial was vitiated. On behalf of State, it was contended that procedure prescribed by a Full Bench of this Court in the case of Krishna Bhagwan vs. The State of Bihar (1989 P.L.J,R..507) be followed. In that case, it was directed that in ease the question whether an accused was a child on the date of occurrence has not been raised in the trial court. but raised for the first time before appellate court, in that event the appellate court should first hear the appeal on merit and determine guilt of the accused and if the conviction is upheld, then it should examine as to whether it is a fit case where a finding be called for from the trial court in accordance with the provision of Section 32 of the Juvenile Justice Act. 1986 (hereinafter referred to as the Act). It further lays down that if finding of the Juvenile court comes in favour of the accused and the same is accepted by Court, then it has no option but to forward record to the trial court for passing an ORDER :in terms of sections 21 and 22 of the Act. Thereafter, both the appeals were heard on merit and ludgment of conviction passed by trial court against the appellants of both the appeals was confirmed. So far as the appeal filed by accused Sahdeo Yadav meaning thereby Cr.Appeal no.22 of 1985 is concerl1ed, the same was dismissed and his conviction and sentence were upheld. So far this appeal is concerned, after affirming the conviction this Court directed the trial court to record a finding in accordance with the provision of section 32 of the Act in relation to the age of the appellant on the date of the alleged occurrence and thereafter transmit the same to this Court.

(3.) PURSUANT to the aforesaid direction, the trial court proceeded with the enquiry under section 32 of the Act during the course of which oral and documentary evidence were adduced. The trial court by its report dated 19.12.1998 has recorded its finding and determined the age of the appellant as 14 years on the date of the alleged occurrence.