ismail Vs. State of Rajasthan

.....much less flash of bus and the accused could not be identified. the conviction of the accused petitioner is rested on the statement of shakura. there was no recovery of stolen property in my opinion, looking to the statement of shakura, the identity of the accused petitioner cannot be said to be established.;the accused petitioner is acquitted of the charges levelled against him.;revision allowed - section 2(k), 2(1), 7 & 40 & juvenile justice (care and protection of children) rules, 2007, rule 12 & 98 & juvenile justice act, 1986, section 2(h): [altamas kabir & cyriac joseph, jj] determination as to juvenile - appellant was found to have completed the age of 16 years and 13 days on the date of alleged occurrence - appellant was arrested on 30.11.1998 when the 1986 act was in force and under clause (h) of section 2 a juvenile was described to mean a child who had not attained the age of sixteen years or a girl who had not attained the age of eighteen years - it is with the enactment of the juvenile justice act, 2000, that in section 2(k) a juvenile or child was defined to mean a child who had not completed eighteen years of a ge which was given prospective prospect - appellant was about sixteen years of age on the date of commission of the alleged offence and had not completed eighteen years of age when the juvenile justice act, 2000, came into force - juvenile act, of 2000 has been given retrospective effect by rule 12 of juvenile justice rule, 2007 - as such, accused has to be treated as juvenile under the said act. - 4. consequently, i allowed this revision petition and set aside the judgment of the learned additional sessions judge as well as that of the magistrate......shakura, as per his own statement, he did not know the accused-petitioner prior to the occurrence. according to the learned counsel, identification parade was held after one year and the conviction based upon the same cannot be sustained.3. the facts of the case are stated in the judgment of the learned sessions judge in detail and suffice it to say that as per the case of the prosecution, shakura had alightened from the bus and coming to his village alwada. it is alleged that near the pulia the accused petitioner along with three others met him and all of them were armed with guns. they were stopped and the accused petitioner took away the ornaments of the wife of shakura under the threat of injuries by gun. a report of the incident was lodged by kalu who is the uncle of shakura and a case was registered. the occurrence had taken place on may 29, 1983 and the accused petitioner was arrested on june 1, 1984, i.e. almost after a year of the occurrence. he was sent to the central jail and the identification parade was held on june 12, 1984 i.e. after 11 days of his arrest. it was stated by the accused during the identification parade that he was shown to the witnesses. a perusal of the statement of shakura pw 3 will show that his statement is full of contradictions and he has noted the features of the accused petitioners. that apart he had stated that he had seen him in the flash of bus coming from the opposite direction. a look at the fir will show that it is not mentioned that there was any source of light much less flash of bus and the accused could not be identified. the conviction of the accused petitioner is rested on the statement of shakura. there was no recovery of stolen property. in my opinion, looking to the statement of shakura, the identity of the accused petitioner cannot be said to be established.4. consequently, i allowed this revision petition and set aside the judgment of the learned additional sessions judge as well as that of the magistrate......