K.S. Jhaveri, J.
1. The present appeal is directed against the judgement and order of conviction and sentence dated 19th July 1993 passed by the learned Additional Sessions Judge, Court No. VIII, Ahmedabad, in Sessions Case No. 384 of 1991 for the alleged commission of offences punishable under Section 302 of IPC and convicted the appellant to undergo imprisonment for life and fine of Rs. 500, in default, to undergo imprisonment for two months.
2. The prosecution case, in short, is as under:
2.1 The appellant-accused, along with his parents and sister who was studying in XIIth standard, was residing in Garden View Flats near Parimal Garden, Ellisbridge, Ahmedabad. Father of victim had three daughters and one son, out of which eldest daughter was married, while his other two younger daughters expired. The victim was studying in XII standard.
2.2 On 30th August 1991 Police Sub Inspector Gohil received a telephonic message from first informant PW1 stating that a person who is residing in Garden View Flat has committed murder of a girl in the neighborhood and injured himself by knife blows. He has also told Inspector Gohil that the parents of accused would come to the police station. Accordingly on their reaching at the police station Shri Gohil went to the flat in question where he found dead body of the victim in the bathroom and the appellant was in bleeding condition.
2.3 The accused was found sitting on a cot in the next room. PSI Gohil recorded the complaint against the accused and called father of the victim and thereafter made inquest panchnama and also the panchnama of scene of offence in the presence of panchas and bloodstained knife and other articles were seized under a panchnama. He has also found milk bags in the kitchen and steel Dolcha (milken) bearing the name of father of victim. PSI Gohil then recorded statements of certain witnesses and accused who was injured was sent to V.S. Hospital.
2.4 The dead body of vicitm was also sent for postmortem to the V.S. Hospital and postmortem note was also obtained. Muddamal knife, etc. which were attached were sent to Forensic Science Laboratory and report of Forensic Science Laboratory was obtained. Map of the scene of offence was also obtained which was prepared by Circle Inspector, Ahmedabad. After completing necessary investigation chargesheet was submitted in the court of learned Metropolitan Magistrate, Ahmedabad, on 25.11.1991. As the offence was exclusively triable by the Court of Sessions, the learned Metropolitan Magistrate, Ahmedabad committed the case to the Court of Sessions on 30th November 1991. The case was numbered as Sessions Case No. 384 of 1991.
3. Learned Advocate for the appellant had filed an application at Exh.5 to the effect that the accused is below 16 years of age and therefore the said Court has no jurisdiction to try the said case. The matter was, therefore, kept for inquiry. After inquiry, learned Additional City Sessions Judge, Court No. 21, Ahmedabad passed order on 31st December 1992 below application Exh.5. The operative part of the order reads as under:
10. It was held in the case of Umeshchandra v. State of Rajasthan reported in : [1982]3SCR583 that entires in the school register and admission form regarding the date of birth constitute good proof of age. In the said case, various aspects regarding determination of birth date are mentioned and, therefore, in this case, birth dated 18.12.1974 of accused Gaurav entered first in the school and which still continues has to be accepted as his correct birth date. It is not proved from any evidence that his correct birth date is 21.2.1976 and on the date of incident, i.e. On 30.8.1991, he was below the age of 16 years.
Under the above circumstances, I hold that on the date of incident, i.e. On 30.8.1991 accused Gaurav was not below the age of 16 years and he was aged about 16 years 8 months and 12 days on the said day. Therefore, City Sessions Court at Ahmedabad has jurisdiction to hear the case and the case cannot be sent to the Juvenile Court as prayed in Application Exh.5.
3.1 Learned additional Sessions Judge has framed charge against the accused-appellant who pleaded not guilty to the charge and claimed to be tried. The learned Additional Sessions Judge, therefore, proceeded to record the evidence. To prove the guilt against the accused the prosecution has examined 9 witnesses as under:
1. Suryavirsinh Tajsinhji Jhala (PW1-Exh.37)
2. Ketanbhai Piyushchandra Shah (PW2-Exh.49)
3. Dr. Jitendra Kantilal Shah (PW3-Exh.51)
4. Panch Chandrakant Mansukhlal Gosalia (PW4-Exh.57)
5. Shitalben Jitendrabhai Shah (PW5-Exh.61)
6. Bageshree Satishbhai (PW6-Exh.62).
7. Dr. Ravidnra Shrikrishna Bhinse (PW7-Exh.64).
8. Nathubha Jorubha Gohil PSI (PW8-Exh.68).
9. Superintendent of Police Gnansagar Girdharji Ahuja (PW9-Exh.70).
3.2 The prosecution has also produced the following documentary evidence vide purshish Exh.36.
1. Police Complaint by Inpector S.J. Gohil (Exh.69)
2. Inquest Panchnama (Exh.38)
3. Panchnama of scene of offence (Exh.58)
4. Panchnama of clothes of deceased (Exh.39).
5. Postmortem Note (Exh.65)
6. Postmortem Slip (Exh.70)
7. Letter of Police Inspector for further opinion of doctor (Exh.93).
8. Further opinion of Dr. Ravindra Bhinse (Exh.42)
9. Receipt in respect of receipt of Muddamal (Exh.43)
10. Forwarding note to FSL dated 30.8.1991 (Exh.44)
11. Medical Certificate in respect of Gaurav Varma. (Exh.45)
12. Notification issued by the Commissioner of Police, Ahmedabad City under the provisions of Bombay Police Act (Exh.46).
13. FSL report (Exh.47).
14. Report in respect of the place (Exh.48).
3.3 On submission of closing pursis, learned Additional sessions Judge has recorded further statement of accused under Section 313 of Code of Criminal procedure.
3.4 After giving opportunity to the learned Advocates for the respective parties, the learned Additional Sessions Judge has delivered the judgement and convicted the appellant-accused as mentioned above which has given rise to the present appeal.
4. Ms Chetna M. Shah, learned Advocate for the appellant submitted that at the time of incident in question the appellant was admittedly 16 years, 8 months and 12 days and therefore the matter should have been referred to Juvenile Court. She submitted that as per the amended provisions of The Juvenile Justice (Care and Protection of Children) Act, 2000 (hereinafter referred to as the said Act) 'juvenile in conflict with law' means a juvenile who is alleged to have committed an offence and has not completed eighteenth year of age as on the date of commission of such offence.
4.1 She has submitted that as per The Juvenile Justice (Care and Protection of Children) Amendment Act, 2000 there is an amendment to Section 20 by inserting explanation stating that in all pending cases including trial, revision, appeal or any other criminal proceedings in respect of a juvenile in conflict with law, in any court, the determination of juvenility of such a juvenile shall be in terms of Clause (l) of Section 2, even if the juvenile ceases to be so on or before the date of commencement of this Act and the provisions of this Act shall apply as if the said provisions had been in force, for all purposes and at all material times when the alleged offence was committed. She therefore submitted that the appeal requires to be allowed.
4.2 She further submitted that in view of the fact that the incident in question is of the year 1991, if the matter is remanded as per the provisions of Act to competent court, the appellant has to undergo unnecessary agony. Relying upon a decision of the Apex Court in the case of Upendra Kuamar v. State of Bihar reported in 2005(3) SCC 592 : 2005 SCC [Cri.] 778, learned Advocate submitted that the sentence is required to be quashed.
4.3 Learned Advocate for the appellant has relied upon Section 19 of the Act of 2000 and submitted that the intention of the Legislature is to remove the stigma on the juvenile and therefore even on this ground the appeal requires to be allowed.
4.4 She has also relied upon a decision in the case of Gopinath Ghosh v. State of West Bengal reported in : 1984CriLJ168 wherein it is held that in view of the beneficial provisions of Act read with Article 29[f], it would be proper not to allow a technical objection and minor was allowed to avail the benefits of the provisions of the Act. In this case the conviction and sentence of minor was set aside and directions were issued to the Magistrate to the effect that whenever a case is brought before him, an inquiry as to the age of accused on the date of occurrence be made.
4.5 Learned Advocate for the appellant has relied upon a decision in the case of Bhola Bhagat v. Sate of Bihar reported in : 1998CriLJ390 , wherein also considering the finding of age by the trial court, the conviction sustained and the sentence awarded was quashed.
4.6 Learned Advocate has also relied upon a decision in the case of Gurpreet Singh v. State of Punjab and Haryana reported in : 2005CriLJ126 wherein it is held that it is the lower court to decide whether the accused was juvenile as on the date of occurrence and if accused was juvenile on such date, he shall be acquitted and sentence would be liable to be set aside.
5. Mr. H.L. Jani, learned Advocate appearing for the State has vehemently opposed the appeal and submitted that the appellant has not made out any case for allowing the appeal. He submitted that the entire prosecution case was admitted by the accused and the circumstantial evidence clearly goes to show the guilt of the accused. He submitted that there is incriminating evidence against the appellant and the prosecution has proved the case beyond doubt. He, therefore, submitted that the appeal requires to be dismissed.
5.1 Mr. H.L. Jani, learned Advocate for the State submitted that it is true that the age of the appellant is more than 16 years, but less than 18 and in view of the judgement of the Apex Court in the case of Jameel v. State of Maharashtra reported in : 2007CriLJ1425 , the contention with regard to the age is not applicable in the present case. He further submitted that as far as merit of the matter is concerned, there are concrete evidence on record to connect the appellant-accused with the crime in question and this Court may not interfere with the conviction and sentence of the appellant.
6. We have heard both the learned Advocates at length and perused the impugned judgement, documentary evidence on record, relevant provisions of law and the decisions of the Apex Court.
7. In order to prove the case, the prosecution has examined Suryavirsinh Jhala (PW1-Exh.37) who has informed about the incident to the police, Dr. Ketan P. Shah (PW2-Exh.49) who had treated the accused Gaurav, Dr. Jitendra K. Shah (PW3-Exh.51) who is father of deceased Hiral, Chanrakant Mansukhlal Gosalia (PW-4 Exh.57) who has proved the panchnama, Shital Jitendra Shah (PW5-Exh.61) who is sister of deceased Hiral, Bageshree Sarishkumar (PW6-Exh-62) who is friend of victim, Dr. Ravindra S. Bhinse (PW7-Exh.64) who performed the postmortem of the body of Hiral, Nathuba Jorubha Gohil (PW8-Exh.68) who has gone to the scene of incident after receiving information and Shri Ganansagar G. Ahuja (PW9-Exh.70) who has conducted the investigation.
7.1 Considering the facts and circumstances of the case the Sessions Court has come to the conclusion that it has been duly established that the accused was present at the time of the commission of the offence along with the deceased and there was nobody except them in the flat of accused and the dead body of the victim was also found in his flat.
7.2 Further, the subsequent conduct of the accused also clearly reflects that he is the only person who knows about the motive in the commission of the crime. The Sessions Court has also found that the chain of evidence is so complete as not to leave any reasonable ground for a conclusion consistent with the innocence of the accused, but it reveals that with all human probabilities the act must have been done by the accused alone. In the present case the circumstantial evidence clearly led to the guilt of the appellant and the only conclusion which can be arrived at is that the accused has committed the alleged offence which resulted into her death. Learned Advocate for the appellant is not able to point out anything from the record to take a contrary view of the matter.
8. However, we are required to consider the contention that at the time of incident the accused was admittedly aged 16 years 8 months and 12 days at the time of the incident and therefore in view of change of law the matter should be referred to Juvenile Court or not. In this connection it is advantageous to refer to Section 2, subsection [h] of the Junvenile Justice Act, 1986 which reads as under:
[h] 'Juvenile' means a boy who has not attained the age of sixteen years or a girl who has not attained the age of eighteen years;
8.1 In The Juvenile Justice (Care and Protection of Children) Act, 2000 the relevant provision is subsection [k] which reads as under:
[k] Juvenile or Schild means a person who has not completed eighteenth year of age;
8.2 At this Stage it is also relevant to note Section 2(1) of the 2000 Act which defines 'juvenile in conflict' with law as under:
[l] Juvenile in conflict with law' means a juvenile who is alleged to have committed an offence and has not completed eighteenth year of age as on the date of commission of such offence.
8.3 The procedure to be followed when a claim of juvenility is raised before any Court is stipulated under Section 7A which reads as under:
7A. Procedure to be followed when claim of juvenility is raised before any Court: (1) Whenever a claim of juvenility is raised before any court or a court is of the opinion that an accused person was a juvenile on the date of commission of the offence, the court shall make an inquiry, take such evidence as may be necessary (but not an affidavit) so as to determine the age of such person, and shall record a finding whether the person is a juvenile or a child or not, stating his age as nearly as may be:
Provided that a claim of juvenility may be raised before any court and it shall be recognized at any stage, even after final disposal of the case, and such claim shall be determined in terms of the provisions contained in this Act and the rules made thereunder, even if the juvenile has ceased to be so on or before the date of commencement of this Act. (2) If the court finds a person to be a juvenile on the date of commission of the offence under Sub-section (1), it shall forward the juvenile to the Board for passing appropriate orders and the sentence, if any, passed by a court shall be deemed to have no effect.
8.4 Thus, if a claim of juvenility is raised, the court has to make an inquiry and after determining the age if the court finds a person to be a juvenile on the date of commission of the offence under subsection (1), the court should forward the juvenile to the Board for passing appropriate orders and the sentence, if any, passed by a court shall be deemed to have no effect.
8.5 On the facts of the present case the appellant had raised claim of juvenility before the Sessions Court and the Sessions Court has ordered for an inquiry in which it was found that the appellant was of the age of 16 years 8 months and 12 days. However, it appears that after ascertaining the age of the appellant the Sessions Court has not considered the request of referring the matter to Juvenile Court and proceeded to pass the judgement and order of conviction and sentence. According to us it was just, legal and proper order in view of the prevailing law as the age of juvenile was fixed at 16 years.
8.6 However, it is required to be noted that subsection (l) of Section (2) of The Juvenile Justice (Care and Protection of Children) Act, 2000 was amended by Section 4 of The Juvenile Justice (Care and Protection of Children) Amendment Act, 2000 (hereinafter referred to as the Amendment Act). Originally Section 2(1) stipulated that 'Juvenile in conflict with law' means a juvenile who is alleged to have committed an offence. This subsection was amended by the Amendment Act stating that 'juvenile inflict with law' means a juvenile who is alleged to have committed an offence and has not completed eighteenth year of age as on the date of commission of such offence. The Legislature has thought it fit to stipulate that the age of the accused should be taken as on the date of the commission of such offence. Once it is proved that the accused is a juvenile as per the provisions of Section 2[l], it is mandatory for the court to forward the juvenile to the Board for passing appropriate orders.
8.7 Now we are also required to consider as to whether at this stage this Court can consider the question of referring the matter to the Board. In this regard it is relevant to note that by Section 14 of the Amendment Act, 'Explanation' was inserted to Section 20 of the principal Act which reads as under:
Explanation _ In all pending cases including trial, revision, appeal or any other criminal proceedings in respect of a juvenile in conflict with law, in any court, the determination of juvenility of such a juvenile shall be in terms of Clause [l] of Section 2, even if the juvenile ceases to be so on or before the date of commencement of this Act and the provisions of this Act shall apply as if the said provisions had been in force, for all purposes and at all material times when the alleged offence was committed.
8.8 Thus, even in the case of appeal, the determination of juvenility of a juvenile shall be in terms of Section 2[1], even if the juvenile ceases to be so on or before the date of commencement of the said Act and the provisions of the said Act shall apply as if the said provisions had been in force, for all purposes and at all material times when the alleged offence was committed.
9. At this stage we may refer to the decision in the case of Upendra Kumar v. State of Bihar reported in 2005(3) SCC 592 (2005 SCC(Cri) 778) held that at that point of time the question of referring the accused to the juvenile Board does not arise and it was held that the conviction sustained and the sentence was quashed.
9.1 In the case of Pratap Singh v. State of Jharkhand and Anr. Reported in : 2005CriLJ3091 it is held that for the determination of age of juvenile, the reckoning date would be the date of the commission of the offence and not the date when the offender is produced before the competent authority or court. It was further held that the 2000 Act would be applicable to those cases initiated and pending trial/inquiry for the offences committed under the 1986 Act provided that the person had not completed 18 years of age as on 1.4.2001. It is also required to be noted that the Constitution Bench in this decision has also held that the provision of the 2000 Act is furthermore a remedial statute and it is required to be given a liberal construction. It would be advantageous to quote certain observations from the above judgement as under:
The striking distinction between the 1986 Act and the 2000 Act is that under the 1986 Act a juvenile means a male juvenile who has not attained the age of 16 years and a female juvenile who has not attained the age of 18 years. In the 2000 Act no distinction has been drawn between the male and female juvenile. The limit of 16 years in the 1986 Act has been raised to 18 years in the 2000 Act.
Section 20 of the 2000 Act deals with the special provision in respect of pending cases and begins with a non obstante clause. The sentence 'notwithstanding anything contained in this Act, all proceedings in respect of a juvenile pending in any court in any area on the date on which this Act came into force' has great significance. The proceedings in respect of a juvenile pending in any court referred to in Section 20 of the Act are relatable to proceedings initiated before the 2000 Act came into force and which are pending when the 2000 Act came into force. The term 'any court' would include even ordinary criminal courts. If the person was a 'juvenile' under the 1986 Act the proceedings would not be pending in criminal courts. They would be pending in criminal courts only if the boy had crossed 16 years or the girl had crossed 18 years. This shows that Section 20 refer to cases where a person had ceased to be a juvenile under the 1986 Act but had not yet crossed the age of 18 years then the pending case shall continue in that court as if the 2000 Act has 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 shall forward the juvenile tot he Board which shall pass orders in respect of that juvenile. Such an interpretation does not offend article 20(1) of the Constitution and the juvenile is not subjected to any penalty greater than that which might have been inflicted on him under the 1986 Act.
Thus, considering the relevant definitions and provisions, it is held that the 2000 Act would be applicable tot hose cases initiated and pending trial/inquiry for the offences committed under the 1986 Act provided that the person had not completed 18 years of age as on 1.4.2001.
9.2 Mr. H.L. Jani has relied upon a decision in the case of Jameel v. State of Maharashtra reported in : 2007CriLJ1425 , wherein it is held that since the incident in the said case was of the year 1989, the Act of 2000 would have no application, the accused had completed the age of 16 years on the date of incident and therefore the accused was not juvenile under 1986 Act. It was therefore held that the plea that 2000 Act would apply as accused was not above 18 years on the date of occurrence is not tenable since on the date of enforcement of 2000 Act accused was above 18 years. However, we are of the view that in view of the amendment to Section 20 of the principal Act by inserting explanation, the Act shall apply as if the said provisions had been in force, for all purposes and at all material times when the alleged offence was committed. In short, the aforesaid decision has not taken into consideration The Juvenile Justice (Care and Protection of Children) Amendment Act, 2006, whereby explanation was inserted to Section 20, and Clause (l) was substituted by amending:
'Juvenile in conflict with law' means a juvenile who is alleged to have committed an offence and has not completed eighteenth year of age as on the date of commission of such offence. Therefore, this decision would be of no help to the learned Advocate for the State.
10. It is also relevant to note Section 16 of the Act of 2000 which reads as under:
16. Order that may not be passed against juvenile _ (1) Notwithstanding anything to the contrary contained in any other law for he time being in force no juvenile in conflict with law shall be sentenced to death or imprisonment for any term which may extend to imprisonment for life, or committed to prison in default of payment of fine or in default of furnishing security:
Provided that where a juvenile who has attained the age of sixteen years has committed an offence and the Board is satisfied that the offence committed is so serious in nature or that his conduct and behaviour have been such that it would not be in his interest or in the interest of other juvenile in a special home to send him to such special home and that none of the other measures provided under this Act is suitable or sufficient, the Board may order the juvenile in conflict with law to be kept in such place of safety and in such manner as it thinks fit and shall report the case for the order of the State Government. (1) On receipt of a report from a Board under Sub-section (1), the State Government may make such arrangement in respect of the juvenile as it deems proper and may order such juvenile to be kept under protective custody at such place and on such conditions as it thinks fit. [Provided that the period of detention so ordered shall not exceed in any case the maximum period provided under Section 15 of this Act.]
10.1 Thus, as per the above section no juvenile in conflict with law shall be sentenced to death or imprisonment for any term which may extend to imprisonment for life or be committed to prison in default of payment of fine or in default of furnishing security.
10.2 It is also required to be noted that in the Statement of Objections and reasons assigned while introducing The Juvenile Justice (Care and Protection of Children) Act, 2000, the intentions inter alia stated are [a] to clarify that the Juvenile Justice Act shall apply to all cases involving detention or criminal prosecution of juveniles under any other law, [b] to remove doubts regarding the relevant date in determining the juvenility of a person and applicability of the Juvenile Justice Act; [c] exclusion of the local authority from the provisions authorizing them to discharge or transfer a child in need of care and protection or a juvenile from the children's home or special home or for sending a juvenile in conflict with law undergoing imprisonment, to a special home or a fit institution; [d] to have a procedure laid down where claim of juvenility is raised before any court; [e] to have a minimum period of twenty-four hours, excluding the time necessary for the journey from the place where the juvenile in conflict with law was apprehended, within which he should be produced before the Board and a similar provision with regard to production of a child before the Child Welfare Committee and [f] to do away with the association of any police officer from the inquiry process, for the child in need of care and protection as the work is assigned to the Child Welfare Committee and to cover other cases where the child can remain in children/shelter home after completion of inquiry.
10.3 At this stage it is also profitable to note Section 19 of the Act of 2000 which reads as under:
19. Removal of disqualification attaching to conviction _ (1) Notwithstanding anything contained in any other law, a juvenile who has committed an offence and has been dealt with under the provisions of this Act shall not suffer disqualification, if any, attaching to a conviction of an offence under such law.
(2) The Board shall make an order directing that the relevant records of such conviction shall be removed after the expiry of the period of appeal or a reasonable period as prescribed under the rules, as the case may be.
10.4 By the aforesaid provision the Act has also tried to see that the stigma on a juvenile attaching to a conviction of an offence under the law is removed.
10.5 From the facts of the case and finding given by the Court below Exh.5 (Para 3 of this judgement) it clearly shows that at the time of the incident the age of the appellant was 16 years 8 months and 12 days and therefore the date on which the trial begun, the age of juvenile was 16 years and the appellant was above 16 and the trial court has rightly rejected the request of appellant and proceeded to pass the impugned judgment.
10.6 In view of the discussion herein above and keeping in mind the amended Act and as per Section 20 & (2)(l) of the Act, the age of juvenile is determined at 18 years and admittedly the present appellant was 16 years, 8 months and 12 days at the time of the incident and below the age of 18. As far as the determination of age is concerned, in normal circumstances, we would have referred the matter to trial court but as discussed above, the age of the appellant has already been determined by the Sessions Court and finding is given which reflects in the order below Exh.5. Therefore it would not be necessary to refer the matter to court below for ascertaining the age of appellant as the appellant was below of the age of 18 years at the time of the incident.
10.7 Now the question comes whether the appellant is entitled to the benefit of the Amended Act, especially Section 2(1) and 20 of the Act. As per Clause 2(l) of the amended Act, the age is determined at 18 years at the time of incident, which is made applicable to the pending appeal also inasmuch as the appeal is a continuous proceeding. Therefore we are of the opinion that the appellant is entitled to the benefits of amended Act.
11. The next question we are required to consider is whether the matter should be referred to the juvenile court or not. In this regard, we are of the considered opinion that, as held in the case of Upendra Kumar (supra) after a long time of about 17 years, it would not be appropriate to refer the Appellant to the Juvenile Board. Therefore, the conviction is required to be sustained, but the sentence is required to be quashed.
12. In the premises aforesaid, we sustain the conviction of the appellant for the offences for which he has been found guilty by the Court of Session and at the same time the sentence awarded to the appellant is quashed. The appeal is allowed to the aforesaid extent.