Shiv Kumar Sharma, J.
1. The appellant was placed on trial before the learned Additional Sessions Judge, Gangapur City, in Sessions Case No. 51/95 for having committed the murder of Neelu. Learned Judge vide judgment dated 2nd March, 1998 convicted and sentenced the appellant as under:-
Section 302 IPC : to suffer life imprisonment and a fine of Rs. 1000/-,in default to further suffer one year simpleimprisonment.Section 364 IPC : to suffer imprisonment for life and a fine of Rs.1000/-, in default to further suffer one year simpleimprisonment.The sentences were ordered to run concurrently.
2. As per the prosecution story a case Under Section 302 IPC was registered by Police Station, Gangapur City on the basis of the written information of Asaram on July 16, 1995 and investigation commenced. The appellant was arrested alongwith his brother Ravi. After usual investigation charge sheet was filed and in due course the case came up for trial before the learned Additional Sessions Judge, Gangapur City.
3. An enquiry was conducted in regard to the age of the appellant and his brother Ravi Kumar by the learned Additional Sessions Judge and it was observed that the appellant and Ravi Kumar were not juvenile as they had crossed 16 years of age on the date of the occurrence. The appellant and Ravi Kumar thereafter filed revision petition bearing No. 407/96 and the High Court vide Judgment dated November 5, 1996 while found Ravi Kumar as below 16 years of age, did not agree with the submissions advanced on behalf of the appellant and indicated that he was more than 16 years of age on the date of incident. The High Court in the said Judgment observed that date of birth of appellant according to School Certificate was February 26, 1980.
4. The finding of learned trial Judge has not been assailed by the learned counsel for the appellant on merits. The only contention of the learned counsel is that in view of Section 2(k) of the Juvenile Justice (Care and Protection of Children) Act, 2000 (for short 'JJ Act'), the appellant was juvenile on the date of occurrence and in view of Section 20 of the JJ Act, the appellant could not have been ordered to undergo imprisonment.
5. The JJ Act came into existence with effect from April 1, 2001. Section 20 of JJ Act provides special provision in respect of pending cases and speaks that notwithstanding anything contained in this Act, all proceeding's in respect of a juvenile pending in any Court in any area on the date on which this Act comes into force in that area, shall be continued in that Court as if this Act had not been passed and if the Court finds that the juvenile has committed an offence, it shall record such finding and instead of passing any sentence in respect of the juvenile, forward the juvenile to the Board which shall pass orders in respect of that juvenile in accordance with the provisions of this Act as if it had been satisfied on inquiry under this Act that a juvenile has committed the offence.
6. As per Sub-rule 2 of Rule 62 of the Juvenile Justice (Care and Protection of Children) Rules, 2001 (for short 'the JJ Rules'), all pending cases which have not received a finality shall be dealt with and disposed of in terms of the provisions of the Act and the rules made thereunder.
7. Section-6 of the JJ Act provides that Juvenile Justice Board shall deal exclusively with all proceedings under the JJ Act. Sub-section (2) of Section 6 however mandates that the power conferred on the Board may also be exercised by the High Court and the Court of Sessions when the proceeding comes before them in appeal, revision or otherwise.
8. As per Section 2(k) of the JJ Act 'juvenile' or child means a person who has not completed eighteenth year of age. Juvenile in conflict with law in view of Section 2(1) means a juvenile, who is alleged to have committed an offence. From the Preamble of the JJ Act it appears that the said Act was enacted to consolidate and amend the law relating to juveniles in conflict with law i.e. juvenile who are alleged to have committed the offence. Although the definition of 'Juvenile' does not indicate that this age is to be seen on the date of occurrence but from the intention of Legislature as appeared from the Preamble we hold that the age is to be seen on the date of occurrence. Three Judge Bench of the Hon'ble Supreme Court in Umesh Chandra v. State of Rajasthan (1), propounded that crucial date to determine whether the accused is a juvenile or not, is the date on which the offence was committed.
9. Instant appeal comes within the definition of pending eases in view of Rule 62 (2) of the JJ Rules. The date of birth of the appellant as observed by the High Court in Criminal Revision No. 407/96, was February 26, 1980 and the incident occurred on July 16, 1995, therefore it can safely be held that the appellant was juvenile on the date of the incident and could not have been sentenced according to Section 20 of JJ Act.
10. As per his date of birth i.e. February 26, 1980, the appellant has now completed 23 years and he cannot be sent to an observation home established under Section 8 of JJ Act for the purpose of rehabilitation and social integration of a juvenile. Their Lordships of the Supreme Court in Jayendra and Anr. v. State of Uttar Pradesh (2), propounded that where accused who was a juvenile on the date of commission of offence has crossed 23 years of age, cannot be sent to an approved school in view of his age and, therefore, his conviction was although upheld but sentence quashed.
11. In yet another case Bhoop Ram v. State of U.P. (3), their Lordships of the Supreme Court indicated in para 8 is as under:-
'Since the appellant is now aged more than 28 years of age, there is no question of the appellant now being sent to an approved school under the U.P. Children Act for being detained there'.
12. For the reasons aforementioned, we partly allow the appeal. While maintaining the conviction of the appellant Under Section 302 and 364 IPC, we set aside the sentence awarded to him. The appellant who is in custody shall be set at liberty forthwith, if not required to be detained in any other case.