Shiv Kumar Sharma, J.
1. The appellant in this appeal impugns the judgment dated March 7, 2003 of the learned Additional Sessions Judge (Fast Track) Alwar in Sessions Case No. 25/2002 whereby the appellant has been decided and sentenced the appellant as under -
Section 302, IPC
To suffer imprisonment for life and fine of Rs. 2000/-, in default to further suffer one year rigorous imprisonment.
Section 498A, IPC
To suffer rigorous imprisonment for three years and fine of Rs. 2000/- in default to further suffer rigorous imprisonment for three months.
The sentences were directed to run concurrently.
2. In the dying declaration recorded by learned Judicial Magistrate No. 9 Jaipur, Mubina (deceased) stated that she was the wife of the appellant who did not like her and on the date of incident poured kerosene oil on her and set her ablaze. Thereafter he showered bucket of water on her burning body. Learned trial Judge after considering the material on record convicted and sentenced the appellant as indicated above.
3. During the pendency of the appeal an application came to be filed on behalf of the appellant to the effect that the appellant was juvenile on the date of commission of offence therefore order of sentence could not be recorded by the learned trial Judge. On our directions, learned trial Judge conducted enquiry about the age of the appellant and passed an order on March 5, 2004 declaring that the age of the appellant on the date of incident was above 18 years.
4. Having carefully scrutinised the submissions advanced before us and on analysing the material on record we find that the learned trial Judge got conducted Radiology test of the appellant on February 3, 2004 and as per medical certificate Ex. A-2 the appellant on the date of medical examination was below 20 years of age. Yagya Dutt Sharma, the Head Master (AW. 1), in his deposition stated that as per admission certificate (Ex. A-1 /A) and Transfer Certificate (Ex. A-2/A) the date of birth of the appellant was September 25, 1984. Jahur Khan, the father of the appellant (A.W. 2) deposed that he got the appellant admitted in Sarojini Naidu Public School and filled the admission form in his own hand writing by entering the date of birth of appellant as September 25, 1984. Dr. M. K. Gupta (AW. 3),and Dr. Amar Singh Rathore (AW. 4) stated that on February 13, 2004 they examined the appellant and on that day the appellant was below 20 years of age. Evidently the appellant was below 18 years of age on December 8, 2001 (the date of incident) and was juvenile in terms of Section 2(k) of the Juvenile Justice (Care and Protection of Children) Act, 2000 (for short 'JJ. Act').
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 proceedings 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 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 JJ Act and the JJ 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. Subsection (2) of Section 6 however mandates that the powers conferred on the Board may also be exercised by the High Court and the Court of Session 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 eighteen years 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. juveniles 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 : [1982]3SCR583 , 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 case in view of Rule 62(2) of JJ Rules, therefore the appellant who was below 18 years of age on the date of incident cannot be sentenced in view of Section 20 of the JJ Act.
10. Even on merits since the appellant after setting his wife ablaze, showered on her a bucket of water we are inclined to think that all that the appellant thought was to inflict burns to his wife to frighten her but unfortunately the situation slipped out of his control and it went to fatal extent. In our considered opinion, the appellant would not have intended to inflict the injuries which the wife of the appellant sustained on account of his act. From the facts it is established that the appellant did not intend to kill his wife but unfortunately she died after some days of the incident because of infection developed on burn injuries. Thus we are persuaded to bring down the offence from first degree murder to culpable homicide not amounting to murder. So far as offence under Section 498A, IPC is concerned, it is established against the appellant beyond a reasonable doubt.
11. Section 6 of the JJ Act gives power to the Juvenile Board to deal exclusively with all proceedings under the JJ Act relating to the juvenile. Sub-section (2) of section 6 of JJ Act mandates that powers of the Board may also be exercised by the High Court and the Court of Session when the proceedings comes before them in appeal revision or otherwise. We therefore find it appropriate that appellant, who was juvenile on the date of incident, should be dealt with by the juvenile Board in accordance with the provisions of JJ Act.
12. For these reasons we partly allow the appeal and instead of Section 302, IPC we convict the appellant under Section 304, Part II, IPC. We however confirm the conviction of the appellant under Section 498A, IPC. Since the appellant cannot be sentenced and has to be dealt with under the JJ Act and JJ Rules, We therefore remit the ease to; learned Additional Sessions Judge (Fast Track) Alwar with the direction to forward the appellant to the Juvenile Board, that shall pass orders in View of Sections 15 and 16 of the JJ Act and JJ Rules, the impugned judgment stands modified as indicated above.
A Copy of this order be sent to learned Additional Sessions Judge, Past Track Alwar along with the record forthwith.