Judgment:
T.S. Doabia, J.
1. This is an unfortunate case. The dead body of Mohan S/o. Tekbahadur, a police constable, was recovered from a well on 5th of October 1978. As per the prosecution, on the night of 3rd and 4th of October 1978, there was Raslila. Accused/respondents Ashok kumar, Hukamchand and Dwarika were also there. At about 11 O'clock, the accused left the place where Raslila was going on. Mohan also accompanied them. The accused/respondents came back after sometime. Mohan was not. with them. The needle of suspicion, thus, was pointed towards the accused. It may be seen that accused Dwarika was of nineteen years of age, whereas, Ashok Kumar and Hukamchand were of fourteen years of age, on the date of occurrence.
2. The matter was put to trial. The learned First Addl. Sessions Judge, Morena recorded a judgment of acquittal. The State has come in appeal.
3. When the matter was taken up for arguments, the learned counsel, for the respondents, submitted at the outset that the trial was vitiated. For this, he relied upon the provisions of M.P. Bal Adhiniyam, 1970. According to him, two of the respondents were below sixteen years of age and as such, the Court of Session could not take cognizance of the matter.
4. We have examined this aspect of the matter. In view of the provisions of the aforementioned Bal Adhiniyam of 1970, the trial by the Court of Session is certainly vitiated and would be without jurisdiction. The matter was examined by the Supreme Court of India in the case of Rohtas v. State of Haryana, : 1979CriLJ1365 . This was with regard to an Act framed by the Haryana Legislature, namely, The Haryana Children Act, 1974. While dealing with the aforementioned Haryana Act, the Supreme Court came to the conclusion that as the case had to be tried by a Magistrate empowered to do so under the Haryana Children Act, 1974, the trial by Sessions Judge was without jurisdiction. Paras 7,8 and 9 are relevant and these may be noticed :-
'It will thus be seen that Section 5 carves out a clear exception to the provisions of the trial of an offence under any special or local law for the time being in force or any special jurisdiction or power conferred or any special form of procedure prescribed by any other law for the time being in force. It is not disputed that the Haryana Act was in force when the Code of 1973 was passed and, therefore, the Haryana Act far from being inconsistent with Section 5 of the Code of 1973 appears to be fully protected by the provisions of Section 5 of the Code of 1973 as indicated above.'
'In these circumstances, we are clearly of the opinion that the High Court was in error in holding that the Code of 1973 overruled the Haryana Act and that the appellant should have been tried under the Code of 1973. We are satisfied that the view taken by the Sessions Judge on this point was correct and the case of the appellant should have been referred to the Magistrate concerned for trial in accordance with the provisions of the Haryana Act.'
'We, therefore, allow this appeal, set aside the judgment of the High Court and restore that of the Sessions Judge as a result of which the appellant will now be tried by the Magistrate empowered under the Haryana Act and in accordance with the provisions of that Act. The case is an old one. The Magistrate concerned should try to dispose of the same as expeditiously as possible.'
5. Again in the case of Gopinath Ghosh v. State of West Bengal,, : 1984CriLJ168 , a plea was raised that the accused was a minor and as such was entitled to the benevolent provisions contained in the West Bengal Children Act, 1959. This plea was raised for the first time in the Supreme Court. This was allowed to be entertained. Thus, there is merit in the contention raised by the counsel for the accused that the trial should have been in accordance with the M. P. Bal Adhiniyam, 1970. As this Adhiniyam has not been kept in view, the trial by the Court of Session would certainly be without jurisdiction.
6. So far as this Court is concerned, there is abundant authority that in case of a child below sixteen years of age if is only the Juvenile Court constituted under the M. P. Bal Adhiniyam of 1970 which can take cognizance of the matter. While dealing with this aspect of the matter in the case of Khalilullah V. State of M. P., 1984 JLJ 736 DB: 1985 Cr LJ 415 (March) it was observed that where special enactment has been brought on the Statute Book and that enactment deals with offences committed by Juveniles, then the Juvenile Courts alone will have jurisdiction to try the juveniles. The fact that the offence is punishable with death or imprisonment for life is totally irrelevant. The case law on the subject was summarised in para 5 of the judgment and it would be apt to notice the same:-
'A Division Bench of this Court in Rupsingh v. State of M. P, (1974 JLJ 587) took a view with reference to the Criminal Procedure Code, 1898, that the Juvenile Courts constituted under the Bal Adhiniyam had exclusive jurisdiction to try the juveniles for all offences including those punishable with life imprisonment or death and that view was further affirmed by a Full Bench in State of M. P. v. Ramesh Nai, (1975 JLJ 167). The question was however re- agitated after the coming into force of the Code of Criminal Procedure, 1973 (Act No. 2 of 1974) and a controversy was raised whether in view of that Code, the Juvenile Court alone will have exclusive jurisdiction in respect of a juvenile to try a 'child' for all offences including those punishable with life imprisonment or death. A Full Bench of this Court [J. S. Verma J. dissenting held in Devisingh v. State of M. P., (1978 JLJ 126)] that for offence punishable with death or imprisonment for life, the Court of Session under the provisions of code of Criminal Procedure, 1973 shall have exclusive jurisdiction to try a 'Child' and Juvenile Court's jurisdiction in that behalf was excluded. The controversy however was set at rest by the Supreme Court in Raghbir v. State of Haryana, (1981 Cr. L.J. 1497 SC), which approved the minority view of J. S. Verma, J. in Devisingh's case (supra), and held that where special Act like Bal Adhiniyam, have been made applicable regarding the juveniles and Juvenile Courts have been established, it is the Juvenile Courts alone which shall have jurisdiction to try the juvenile even in respect of offence punishable with death or imprisonment for life. Further it may be noticed that sub-section (1) Section 22 of the Bal Adhiniyam which begins with a non obstante clause, takes away the jurisdiction of a Court to impose on a delinquent 'child' a sentence of death or imprisonment or committing to imprisonment in default of payment of fine or furnishing security, The proviso annexed to sub-section (1) of Section 22 of the Adhiniyam, however, permits the delinquent 'child' to be kept in safe custody in such place and manner as the Court may think fit in case the conditions mentioned in the proviso are satisfied. In such event, the Court is under an obligation to report the case for orders of the State Govt. In view of the aforesaid state of law, the appellant could not have been tried by the Sessions Judge for the offence charged, namely, of murder, and could not have been sentenced to life imprisonment, in case the Bal Adhiniyam were in force and consequently a Juvenile Court established for that area where the offence was committed, In that event, the entire trial would have stood vitiated.'
7. In view of the above position of law, we have come to the conclusion that so far as the accused/ respondents Ashok Kumar and Hukamchand are concerned, they being below sixteen years of age were to be tried under the provisions of the Bal Adhiniyam of 1970. Their trial was, thus, vitiated.
8. The learned counsel for the respondents has further argued that that no useful purpose would be served to remit the matter back for fresh trial in accordance with the procedure laid down in the Bal Adhiniyam of 1970.For this, he placed reliance on Lalsingh v. State of M.P., 1981 MPWN 107. In the above case, this Court took a view that as a period of more than six yeasrs had elapsed between the incident and the date on which the decision was given by the High Court, no useful purpose would be served to remit the matter back. In the present case, the occurrence took place in October 1978. More than 15 years have elapsed. As such, we do not find this to be a fit case for ordering retrial under the M. P. Bal Adhiniyam of 1970.
9. The above conclusion absolves only accused/ respondents Nos. 1 and 2. With a view to examine the case of Dwarika accused /respondent, we have examined the matter on merits also. We find that the prosecution has not been able to prove the case to the hilt. At this stage, the story put forward by the prosecution may again be noticed. On the night of 3rd and 4th of October, 1978, Raslila was going on in village Rampurkalan. Deceased Mohan was present there. The three accused also happened to be there. It is alleged that at about 11 'o' clock, the three accused accompanied by Mohan left the place where Raslila was going on. The three accused came back after sometime. Mohan deceased was not with them. Mohan's father Tekbahadur, after attending to his duties, reached home. He was informed by his wife that Mohan had not returned. Then a search was started. On the information having been given by Sitaram (P.W. 3) and Kanhaiyalal Shrivastava, the dead body of Mohan was recovered from a well. On medical examination, it was found that Mohan was victim of an unnatural offence having been committed upon him. His death was on account of drowning.
10. Prosecution has relied upon following facts:-
(i) Mohan was last seen in the company of the deceased.
(ii) Two P.Ws. had heard the shrieks and this was followed by a sound indicating as if some heavy matter had been thrown into the well.
(iii) Recovery of shoes worn by Mohan deceased.
11. We have examined the above aspects. We are of the view that case against the accused has not been proved.
12. The mere fact that Mohan was seen last in the company of accused is in itself not a ground to connect them with the alleged crime. The prosecution has relied on the statement of Sitaram (P.W. 3). According to him, his daughter had also gone to see Raslila on that date. He was waiting for her return. At that point of time, he heard the shrieks of a child who was heard saying 'MUJHE MAT PATKO' (Do not throw me). After this, he heard a noise indicating the fall of a heavy matter into the well. He further deposed that he and his wife who also happened to be there, stood up and they found that accused Ashok Kumar was standing near the well. He further deposed that in front of the house of one Shankarlal one electric light was on, and, therefore, he was able to identify accused Ashok Kumar. The conduct of this witness is rather unnatural. Having heard the shrieks and having realised that something has been thrown into the well, it should have been but natural for him to go near the well and see as to what had happened. He, however, did not do so. As such, this witness does not inspire confidence. Even if the statement of this witness is taken to be correct, it only indicates that accused Ashok Kumar was present near the well. So far as the other accused are concerned, they were not seen by him. The prosecution story has failed to indict the other accused.
13. The position is no different when we examine the statement given by Bhupendra Singh (P. W. 2). He does say that he heard a noise representing as if something heavy had been thrown into the well. He also deposed to the effect that accused Ashok Kumar and Hukamchand were near the well but he failed to identify the third person. He has also deposed that there were other persons also present there. He goes on to say that he stopped the accused with a view to elicit information from them as to what they had thrown into the well. The conduct of this witness is again unnatural. He made no effort to see for himself as to what was thrown into the well. This witness also does not inspire confidence. We do not rely upon this witness.
13A. Thus, the prosecution witnesses referred to above, namely, Sitaram (P.W. 3) and Bhupendra Singh (P. W. 2) were not sure about the presence of accused Dwarika at the scene of occurrence near the well. The prosecution has also relied upon the recovery of the shoes which were worn by deceased Mohan. The recovery of the shoes was made at the instance of accused Ashok Kumar. These were recovered from an open place. As such, the recovery of the shoes and the identification thereof by Tekbahadur, father of the deceased, also does not advance the case of the prosecution. Thus, even on merits, we do not find any justification to interfere with the finding of acquittal recorded by the trial Court.
14. Another contention which has been raised by the learned counsel for the appellant is that this Court may refrain from interfering with the order of acquittal recorded by the Court below and he placed reliance on various decisions given by the Supreme Court of India. One such decision is G.B. Patel v. State of Maharashtra, : 1979CriLJ51 . In this case, Sarkaria, J. (as His Lordship then was), speaking for the Court observed:-
'Where two reasonable conclusions can be drawn on the evidence on record, the High Court should as a matter of judicial caution, refrain from interfering with the order of acquittal recorded by the Court below. In other words, if the main grounds on which the Court below has based its order of acquitting the accused, are reasonable and plausible, and cannot be entirely and effectively dislodged or demolished, the High Court should not disturb the acquittal.'
The above observations were approved by the Supreme Court in the case of Awadhesh v. State of M.P., : 1988CriLJ1154 . The Supreme Court came to the conclusion that 'although the powers of the High Court to reassess the evidence and reach its own conclusion are as extensive as in an appeal against the order of conviction, yet, as a rule of prudence, the High Court should always give proper weight and consideration to matters e.g., (i) the view of the trial Judge as to the credibility of the witnesses; (ii) the presumption of innocence in favour of the accused, a presumption certainly not weakened by the fact that he has been acquitted at the trial; (iii) the right of the accused to the benefit of any doubt, and (iv) the slowness of an appellate Court in disturbing a finding of fact arrived at by a Judge who had the advantage of seeing the witnesses.' The law laid down by the Supreme Court of India in the aforementioned cases does apply to the facts of the present case.
15 However, independently of that, we have come to a firm conclusion that the prosecution has not been able to establish the case against any of the accused. In this view of the matter, we find that the State appeal is without merit. We dismiss the same. Bail bonds shall stand discharged.