Judgment:
Girish Chandra Gupta, J.
1. This appeal is directed against a judgment dated 19th June, 2002, passed by the learned Additional Sessions Judge, 4th Court, Howrah, in Sessions Trial Case No. XXX(April), 2000, convicting the appellants for a charge under Section 302 read with Section 34 of the Indian Penal Code, and an order dated 20th June, 2002, by which the appellants were sentenced to suffer imprisonment for life and to pay fine of Rs. 10,000/- each; in default to suffer further rigorous imprisonment for a period of one year for the aforesaid offence.
2. The facts and circumstances of the case briefly stated are as follows:
On 10th July, 1990, at about 8 P.M. in the evening Sukumar Roy, aged about 25 years, was beaten severely by the appellants. He was hospitalised with Bagnan Hospital from where he was referred to Uluberia hospital where he died in the morning at 6.05 hours on 11th July, 1990. The evidence adduced by the prosecution may now be briefly discussed.
3. On 10th July, 1990, at 22.05 hours one of the appellants, viz. Tapan Panchal, lodged a general diary with the Bagnan police station which has been marked Exhibit 2. The general diary recorded by the P.W. 13 reads as follows:
Ref: Bagnan P.S. G.D.E. No. - 451 -Dt. 10.7. 90. This time one Tapan Pachal S/o- Saroj Pachal of village Bangalpur Paschimpara P.S. Bagnan Howrah came to P.S. along with others and reported that one Sukumar Roy S/o Sri Sital Roy of do assaulted the informant by fist or blows and also by lathi due to quarrel among them in C/W a family dispute related with the sister of informant in C/W love affairs between the informant's sister and Sukumar Roy. Accordingly tension was created at the locality and at the same time injured was sent to Bagnan Rural hospital for medical and report and action will be taken as per medical report and also the fact is noted in G.D. as per desire of statement of informant and also informed S.I. -K. P. Ganguli and, S.I. D- Banerjee and S.I.- C. Ghosh to go to the spot and also to look into the matter and take necessary action.
Sd/- D. Ghosh
S.I.
4. At 23.25 hours on 10th July, 1990, a written complaint was lodged by the P.W.I, Srikanta Roy, alleging that his elder brother, Sukumar Roy, had developed an emotional relationship with one Kumari Bandana Panchal, aged about twenty years, daughter of the first appellant, Suraj Panchal, a resident of the same village. On 10th July, 1990, at about 8 P.M. in the evening the de facto complainant hearing a hue and cry accompanied by his uncle Dulal Ch. Roy and Samir Roy, P.W.9, and others rushed to the place of cocurrence and found in the adjacent place in front of the house of Bandana Panchal, his elder brother, Sukumar Roy, was groaning. His hands and legs were tied. Anil Baran Panchal and his elder brother, Suraj Panchal, both sons of Late Balai Panchal, and Tapan Panchal and Swapan Panchal, both sons of Suraj Panchal, were engaged in mercilessly assaulting the said Sukumar Roy with rods, sticks and fisticuffs. The victim Sukumar Roy was bleeding from various parts of the body, including head, nose and mouth. Upon being chased by the de facto complainant, his companion and the villagers, the assailants fled away from the place of occurrence. The victim was thereafter hospitalised with the Bagnan hospital.
5. Initially a case was started under Sections 342/326/303/307/334 of the Indian Penal Code. On 13th July, 1990, with the leave of the learned Magistrate Section 302 of the Indian Penal Code was added. The accused persons were ultimately charged under Section 302 read with Section 34 of the IPC On 12th July, 1990, an inquest was held at 10.30 hours in the morning which has been marked Exhibit 12. The inquest report goes to show extensive injury on the limbs of the deceased and on his head including nose, mouth and ear.
6. It appears from Exhibit 7 that the patient was referred by the Bagnan rural hospital to Uluberia S.D. Hospital. From Exhibit 7 it also appears that the patient was unconscious and there was severe injury on the head.
7. The victim, it appears, was admitted at 1.40 A.M. on 11th July, 1990, at Uluberia Hospital. The injury report goes to show that the patient was bleeding from ear and mouth; pupils were not reacting and the scalp injury was 3 inches in length. The patient had sustained severe head injury and expired at 6.05 P.M. on 11th July, 1990. The injury report has been marked Exhibit 8.
8. The de facto complainant, P.W. 1, in his evidence inter alia deposed as follows:
I went to the courtyard of Suroj and found that all the accd. persons assaulting my brother Sukumar after tying his hand with rope by the help of iron rod, lathi, brickbats etc.... Samir Ray my another elder brother summoned local Dr. Subinoy Mondal. While Dr. Subinoy Mondal (was) going to start treatment then he was obstructed by the accd. person. Thereafter we took my brother to Bagnan Hospital. On seeing his condition my brother was immediately referred to Uluberia Hospital by ambulance. Thereafter I went to P.S. and lodged written complain.
9. Mr. Basu, the learned Counsel, appearing in support of the appeal, assailing the evidence of the P.W.I, submitted that the evidence of the P.W.1 is at variance with the written complaint. The P.W. 1 in his written complaint alleged that he accompanied by his uncle, Dulal Chandra Roy, and his elder brother, P.W.9, rushed to the house of the accused persons but in his evidence in Court, he did not support the same. According to the evidence given in Court, it appears that he alone went to the house of the accused persons hearing the hue and cry.
10. We already have noticed the relevant portion of his evidence which includes a reference to his elder brother, Samir Ray, P.W.9. It cannot, therefore, be said that the evidence of P.W.I in Court was that he alone went to the house of the accused persons.
11. Mr. Basu further submitted that according to the evidence of the P.W.1, Dr. Subinoy Mondal was summoned by the P.W.9 to provide medical assistance to the victim but this fact is conspicuous by absence from the written complaint.
12. We are inclined to think that this is a matter of detail and the absence of this fact from the written complaint does not militate against the case of the prosecution.
13. Mr. Basu went on to add that the P.W. 1 in his cross-examination admitted that there was no electricity in the house of the accused persons. In the absence of electricity, how could the P.W.I see the assailants is a mystery. How did the P.W.I recognize the assailants in the absence of electricity is a question which was never asked on behalf of the defence. We are, in the circumstances, unable to attach great significance to this factor.
14. Lastly, it was submitted by Mr. Basu, criticising the evidence of the P.W.1, that in his cross-examination he deposed that ' No villager except my relatives was present.' Mr. Basu contended that this part of the evidence rules out the possibility of any witness other than the relations of the victim having been present at the place of occurrence.
15. This sentence, we are inclined to think, cannot be viewed in isolation because the P.W. 1 has deposed that Dr. Subinoy Mondal (P.W.2) was summoned by his brother, Samir Ray, P.W. 9, but Dr. Mondal was not allowed by the accused persons to provide medical assistance to the victim. Dr. Mondal is not a relation of the complainant party. We are, therefore, of the view that this sentence is sought to be read out of the context by the learned Counsel, appearing in support of the appeal.
P.W. 2, Dr. Subinoy Mondal, deposed as follows:
On 10.7.90 I was in my house at about 8.00 p.m. I heard a hue and cry from adjoining locality and rushed to the house of Anil and Suraj Panchhal wherefrom the hue and cry was coming. On reaching there I found that Anil and Suraj dragged Sukumar Ray and at that time his hands and legs were tied and he sustained bleeding injury all over his person. At the relevant time Samir, the elder brother of Sukumar came to the spot. I advised Samir to give Sukumar first aid which was opposed by the accused persons and they stated to me that they took Sukumar to the local P.S. Thereafter due to the intervention of local people Sukumar was taken to hospital. When they obstructed me, I went away and again came to the spot when the local villagers assembled as summoned by Samir.
16. The evidence of the P.W.2 , Dr. Mondal, clearly shows that the villagers were present at the place of occurrence.
17. Criticising the evidence of the P.W.2, Mr. Basu submitted that this witness at the highest had implicated the accused, Anil Panchal and Suraj Panchal. He did not implicate in his examination-in-chief the accused, Tapan Panchal, and the accused, Swapan Panchal. Mr. Basu in fairness, admitted that in his cross-examination the P.W. 2 had implicated all the accused persons. Mr. Basu wanted us to disbelieve the evidence of the P.W. 2 because the P.W. 19, the Investigating Officer, in his cross-examination, admitted that ' P.W. 2 stated to me that he did not see any assault nor he has seen the injured.'
18. Even taking into account the omission deposed to by the P.W. 19, it cannot be said that the entire evidence of the P.W.2 is untrue. The fact that the P.W. 2 was at the place of occurrence has already been deposed to by the P.W.I. The P.W.2 deposed that on reaching the place of occurrence, he found that Anil Panchal and Suraj Panchal were dragging Sukumar Roy. At that time the hands and legs of Sukumar Roy were tied and he had sustained bleeding injury allover his body. This part of the evidence of P.W. 2 cannot be eliminated at any cost. The further evidence of the P.W.2 that he wanted to provide medical assistance to the victim, which was opposed by the accused persons, has been corroborated by the P.W.1. This part of evidence of the P.W.2 also cannot be eliminated. The accused persons have been charged under Section 302 read with Section 34 of the Indian Penal Code. When there is evidence to show that the accused, Anil Panchal, and the accused, Suraj Panchal, were dragging the victim and all the accused persons opposed medical assistance being provided to the victim, it can hardly be said that P.W. 2 has not 'implicated Swapan Panchal and Tapan Panchal. If Swapan Panchal and Tapan Panchal had not shared the common intention of killing the victim, they would not have opposed or prevented the Doctor from providing medical assistance to the victim. We, therefore, do not find any substance in the submission that Swapan Panchal and Tapan Panchal have not been implicated by the P.W.2.
P.W.3, Samar Roy, deposed as follows:
I heard a hue and cry from the house of Panchal and rushed to their house. From the ground floor I heard that accd. persons assaulted somebody and started moving to first floor and from the staircase I saw the accused assaulted Sukumar Roy, tied his hands and legs with rope and threw him to the ground floor from the 1st floor. At that time Anil Panchal and Saroj Panchal are armed with lathi, rod. Then Tapan Panchal hit on Sukumar by a brickbat resulting bleeding injury. Then Anil Panchal dragged Sukumar and left him in danga of Gobinda Mondal which is in front of the house of the accd. persons. The villagers summoned a Homeopath named Subinay Mondal in order to treat Sukumar but Subinay was obstructed by the accused persons. Thereafter a local people took Sukumar to the Bagnan Hospital.
19. Assailing the evidence of the P.W. 3, Mr. Basu submitted that this witness has introduced a story different from the one told by the P.W. 1. According to this witness, the victim was thrown from the first floor to the ground floor which is not even the case of the P.W.1.
20. P.W.I was not present at the place of occurrence from the beginning to the end. As a matter of fact, neither of the witnesses examined in this case was present at the place of occurrence from the beginning to the end. Hearing hue and cry the witnesses rushed to the place of occurrence. Therefore, the time of arrival of each of the witnesses at the place of occurrence is bound to be different. All of them could not reach the place of occurrence at the same time. It is probable that P.W.3 had reached the place of occurrence before the P.W. I did. P.W. 3 may have seen the accused persons throwing the victim from the first floor to the ground floor. The P.W.3, as a matter of fact, in his cross-examination has stated that except myself none else was present.' This goes to show that the P.W. 3 reached the place of occurrence before did the P.W. 1. The P.W. I had seen the accused persons assaulting the victim in the courtyard of the accused, Suraj Panchal. Therefore, it is not possible to hold that the evidence of the P.W. 3 is unbelievable or that the same is untrue.
21. It is true that P.W. 1 in his cross-examination has deposed that 'When I reached the house of Suraj Panchal, then I found that the accused persons pushed my brother from the first floor after assaulting him.'
22. Sight cannot be lost of the fact that the witnesses including the P.W. 1 deposed in Court in Bengali which was translated into English by the learned Trial Judge while recording the evidence 'Pushed from the first floor' and 'threw from the first floor' practically would mean the same thing while spoken in the Bengali language. The Autopsy Surgeon (P.W. 14 Dr. Chatterjee deposed as regards the injury on the head that the same 'may be caused to a person was hit with a great force on his head or he was thrown away from a height'. We are, therefore, unable to disbelieve the evidence of the P.W.3 that the victim was thrown by the accused persons from the first floor to the ground floor.
23. Mr. Basu further submitted that the P.W.3 has also introduced a story that the body of the victim was dragged by the accused, Anil Panchal, and left in the danga of Gobinda Mondal which is in front of the house of the accused persons. This part of the evidence of the P.W.3, we are emboldened to observe, has been corroborated by other piece of evidence, namely, Exhibit 6, which is a seizure list. From the courtyard of Gobinda Mondal blood stained and controlled earth were seized; blood stained wearing apparels of the victim, including torn pieces thereof, rope by which the limbs of the victim were tied and a letter appearing to have been written by the victim, Sukumar Roy, to Bandana Panchal, daughter of the accused, Suraj Panchal, were seized. Therefore, we are unable to find any fault with the evidence of the P.W.3.
P.W. 4, Hiralal Roy, deposed as follows:
On 10.7.90 in the evening I was passing by the side of the house of the accused persons. At that time I heard that there was a sound of beating from the first-floor of the accused persons' house. I went to the first-floor through wooden staircase. Then I found that Anil, Suraj, Swapan and Tapan assaulted Sukumar with lathi, rod etc. I became frightened and found from a distance that Sukumar sustained head injury and thereafter they tied Sukumar's hands and legs with a rope and threw away Sukumar from first-floor to ground-floor. Thereafter they dragged Sukumar and left him in the danga of Gobinda Mondal. Then Subinoy Mondal, a local Homeopath, came to treat Sukumar but he went away as threatened by the accused persons. At that time there was no electricity in our village. I have seen the incident in the light of a Haricane. Sukumar died at the hospital.
In his cross-examination the P.W. 4 deposed, inter alia as follows:
The total incident lasted for near an hour and I was all along present. I went home after Sukumar was taken to Hospital. The time from the assault of Sukumar to his departure to the hospital lasted for an hour. There was an ill-feeling for the love affairs in between Sukumar and Bandana between the two families.
Not a fact that Sukumar was assaulted on the brick road.
XXXmn. For Tapan and Swapan Pachhal:
For the first time I disclosed the fact in Court today. Not a fact that I am deposing falsely.
24. Mr. Basu, criticizing the evidence of the P.W.4, submitted that the evidence of this witness is most improbable. It is difficult to believe, according to him, that an outsider would be allowed access inside the house and he would witness the incident. He further submitted that the P.W. 4, in his cross-examination, admitted that for the first time he had disclosed his evidence in Court.
25. The witness was not asked during his cross-examination as to whether he encountered any difficulty in having access to the house of the accused persons when the incident was in progress. Moreover, all the four male members of the family of the accused persons were engaged in the assault. There was tremendous hue and cry. Therefore, it is not improbable that the outsiders would assemble at the place of occurrence. In so far as the submission of Mr. Basu that the evidence of P.W. 4 was not disclosed earlier, it may be pointed out that the P.W. 19, the Investigating Officer, did not contradict any part of the evidence of the P.W. 4 nor did he depose that the P.W.4 was not examined under Section 161 of the Code of Criminal Procedure. No pointed question was asked to the P.W.4 as to whether he was examined by the police under. Section 161 of the Code of Criminal Procedure. We have checked up the records and found that the P.W. 4 was cited as an eye-witness. No objection was raised while the P.W.4 was sought to be examined by the prosecution. It is, therefore, difficult to believe that this witness had not been examined under Section 161 of the Cr. PC This witness has given a vivid description of the incident. No infirmity in his evidence could be elicited during his cross-examination. We are, therefore, not in a position to discard the evidence of this witness.
26. P.W.5, Uday Ray, turned hostile. P.W. 5 in his cross-examination, on behalf of the accused persons, deposed that the accused persons were there on the spot.
He further deposed that the P.W. 2, Dr. Subinoy Mondal, was summoned. These two pieces of information given by the P.W. 5 during his cross-examination, on behalf of the defence, support the case of the prosecution.
P.W. 7, Uttam Mondal, deposed as follows:
On 10.7.90 at about 7.30/8.00 P.M. I was in my house. I heard a hue and cry from the house of the accd. person. I had been to the house of the accused person and found an altercation was going on between Tapan and Sukumar in the first floor of the house of the accused persons. I have seen the incident in the light of Haricane. Anil, Saroj and Tapan dragged Sukumar from the first floor and assaulted Sukumar by rod, lathi and brick bat etc. Sukumar was found with bleeding injury-and his brain matter came out. Sukumar was also assaulted by the accd. Persons on his legs and back portion of his body. Anil and other accd. person dragged Sukumar to the land of Gobinda Mondal and kept there. Accd. person also restrained Dr. Subinoy Mondal from treating Sukumar. Later Sukumar was taken to the hospital where he died.
27. Mr. Basu, assailing the evidence of P.W.7, submitted that presence of the P.W.7 at the place of occurrence is highly improbable if the evidence of P.Ws.1, 3 and 4 is to be believed because each one of the said witnesses, namely, P.Ws. 1,3 and 4, deposed that except for himself, none else was present at the place of occurrence. P.W.5, a hostile witness, deposed that about 200 persons had assemble at the place of occurrence. P.W.2 deposed about presence of the local people. P.Ws. 1, 3 and 4 may not have seen each other, but that does not mean that at the place of occurrence others were not present.
P.W.9, Samir Ray, an elder brother of the victim, deposed as follows:
On 10.7.90 at about 8.00 p.m. I was in my house. We are three brothers and two sisters. At that time I was busy in household work. I heard a hue and cry from the house of the accused persons and on hearing this I had been to the house of the accused persons and found that my brother was lying on the land of Gobinda with his hands and legs tied with ropes. There was bleeding injury allover his head. And Anil Pachhal was assaulting my brother with a wooden stick. In the light of Haricane I had seen the incident. Dr. Subinay Mondal came there and I requested him to treat my brother but he was obstructed by the accused persons. He left away. Dr. Subinay came to the spot before me and he left the spot and I again summoned him. My brother was taken to Hospital by the local people. I went to the P. S. Srikanta is my brother. He has also accompanied me to the P.S. and he lodged the F.I.R. From Bagnan Hospital my brother was shifted to Uluberia Hospital where he succumbed to the injury.
28. Mr. Basu submitted that according to this witness, the accused, Anil Panchal, alone assaulted the victim. It may be pointed out that P.W.9 had reached after the body of the victim was thrown into the land of Gobinda Mondal. The major part of the assault took place inside the house of the accused persons. Therefore, it is difficult to hold that Anil Panchal is the only person who assaulted the victim.
29. Mr. Basu further submitted that on the date of the incident P.W. 9. did not disclose anything to the police. According to him, there is divergence between the evidence of P.W. 1 and P.W.9 which may be true, but there is no substance in the submission that P.W.9 did not disclose anything to the police on the date of the incident. P.Ws. 1 and 9 together had gone to the police station for the purpose of lodging an F.I.R. P.W. 1 lodged the F.I.R. He disclosed the incident before the police on the date of the incident itself. He was accompanied by the P.W. 9. We do not think that P.W.9 was expected separately to inform anything to the police except during his examination under Section 161 Cr PC.
30. P.W. 19, the Investigating Officer, in his cross-examination, deposed that the P.W.9 did not tell him that he had seen any assault. Therefore, we are inclined to hold that P.W.9 may have rushed to the place of occurrence after the assault was over. This could be the reason why he found the victim lying in the courtyard of Gobinda Mondal. We shall, therefore, not take into account the evidence of P.W.9 as regards the actual incident of assault.
31. Mr. Basu in summarizing his case submitted that according to the P.W. 1, all the four accused persons assaulted the victim. According to P.W. 2, only the accused, Anil Panchal and Suraj Panchal, assaulted the victim. According to P.W.3 Anil Panchal, Suraj Panchal and Tapan Panchal assaulted the victim. According to P.W. 4, all the accused persons assaulted the victim, and according to P.W.7, Anil Panchal, Suraj Panchal and Tapan Panchal assaulted the victim. Mr. Basu submitted that there is no uniformity in the evidence of the witnesses as to who actually committed the assault on the victim.
32. The accused persons were charged under Section 302 read with Section 34 of the Indian Penal Code. Therefore, the material question, in our view, is whether the prosecution has been able to prove the common intention of the accused persons. It is not necessary to prove the overt act of the individual accused persons. The evidence of the P.W.2, Dr. Subinoy Mondal, quoted above, goes to show that he was not allowed to extend medical assistance to the victim by the accused persons. This is a pointer to show that the accused persons shared the common intention of killing the victim. On the top of that, on the basis of the evidence discussed above, and more particularly taking into consideration the evidence of the P.Ws. 1, 2, 3, 4, 5 and 7, we have no manner of doubt that each one of the accused persons was involved in assaulting the victim, Sukumar Roy and they shared the common intention. The G.D. Entry lodged by the accused, Tapan Panchal, which has been marked Exhibit 2, goes to establish:
(a) There was a love affair between the deceased Sukumar Roy, and Bandana Panchal; and
(b) A dispute and a quarrel and/or brawl cropped up concerning the aforesaid love affair in which Sukumar Roy was seriously injured and he had been sent to Bagnan Rural Hospital.
33. The G.D. Entry itself goes to show that the accused, Tapan Panchal, requested the police to immediately visit the place of occurrence because there was tension. This goes to establish further that the accused persons were feeling insecure and they wanted the police to visit the place of occurrence.
34. The fact that the incident took place in the house of the accused persons is amply proved by the evidence discussed above which is further reinforced by the seizure list marked Exhibit 5 which goes to show that from the house of the accused persons, blood stained and controlled earth were seized, a pair of hawai chappal and a H.M.T. watch containing inscription 'S' were seized and a blood stained piece of wood was also seized.
35. The fact that the victim was thrown in the courtyard of Gobinda Mondal is well established from the evidence of the witnesses discussed above which is further reinforced by the seizure list, which has been marked Exhibit 6, which goes to show that blood stained wearing apparels and bloodstained controlled earth were seized from the courtyard of Gobinda Mondal. The blood stained wearing apparels of the victim contained a letter addressed to Bandana. A rope by which the limbs of the deceased had been tied was also seized from the courtyard of Gobinda Mondal.
36. The injury report marked Exhibit 7, prepared at Bagnan Rural Hospital, goes to show that the victim was unconscious, he was not reacting and he had a severe head injury. The injury report has been proved by P.W. 16, Dr. Majumdar. Dr. Majumdar further deposed that the type of the injury found on the body of the victim could have been caused by lathis, rod and brickbats.
37. Exhibit 8, another injury report signed by Dr. Chatterjee and proved by P.W. 16 , goes to show that the victim was admitted at Uluberia S.D. Hospital at 1.40 A.M. on 11th July, 1990. He was bleeding through ear and nostril. His pupils were not reacting. There was serious scalp injury and the patient died at 6.05 P.M. on 11th July, 1990. The F.S.L report marked Exhibit 9 goes to show that each of the seized articles contained human blood. P.W. 14, Dr. Kumud Ranjan Chatterjee, who conducted the post- mortem on 12th July, 1990, deposed that ' this type of injury was sufficient to cause death of a person'.
38. We are of the view, for the grounds discussed above, that the prosecution has been able to prove its case beyond any reasonable doubt. The conviction under challenge is well founded and there is no scope for any interference.
39. The appeal, insofar as the appellants Suraj and Anil are concerned, is therefore dismissed. Conviction of Tapan and Swapan is also upheld. Considering that an application has been made for determination of the age of the appellants Tapan and Swapan, the appeal concerning them in relation to sentence is kept pending. The learned Trial Court is directed to take evidence in accordance with law and to determine the following question:
Whether the appellants Tapan and Swapan were juveniles on the date of incident i.e. 10th July 1990?
40. The appeal insofar as the appellants No. 1 and 3 Suroj alias Suraj Panchal and Anil Panchal are concerend is dismissed.
41. It appears from the record that appellant No. 1 Saroj alias Suraj Panchal was granted bail by a Division Bench of this Court on 16.7.2002. Bail granted to him is cancelled. He is directed to forthwith surrender and to serve out the rest part of the sentence as awarded by the learned Trial Court. The appellant No. 3 Anil Panchal is now in jail. He is directed to serve out the rest of the sentences as awarded by the learned Trial Court.
42. The fate of the appeal as regards the sentence against the appellant Nos. 2 and 4 Tapan Panchal and Swapan Panchal respectively shall be considered after the question as formulated above is decided by the Trial Court upon taking evidence in accordance with law. The learned Trial Court is directed to decide the question as early as possible preferably within a period of three months from the date of receipt of the Lower Court Records.
43. It is evident from the record that the aforesaid two convicts are now in judicial custody. The learned Trial Court will take necessary step for production of the aforesaid two appellants before him for the purpose of adducing evidence in support of their claim that they were juveniles on the date of incident that is on 10th July, 1990. If necessary, the learned Trial Court may refer the aforesaid two appellants to the medical board or the civil surgeon as the case may be for obtaining credit-worthy evidence about their age.
44. Before we part with the judgment, we must observe that in the recent past, in this Court, contention about the age of the convicts and prayers claiming benefit under the relevant provisions of the Juvenile Justice (Care and Protection of Children Act) 2000, which came into force on 1st April 2001, have repeatedly been raised for the first time in this Court. Ordinarily this Court would be reluctant to entertain a contention based on factual averments raised for the first time before it. However, this Court is equally reluctant to ignore, overlook or nullify the beneficial provisions of the statute. We are therefore of the opinion that whenever a case is brought before Magistrate and/or Trial Court and the accused appears to be juvenile, the age of the accused on the date of occurrence, should be ascertained before proceeding with the trial. This procedure, if properly followed, would avoid a journey up to this Court and return journey to the grass-root Court. If necessary and found expedient, this Court may on its administrative side issue necessary instructions to cope with the situation herein indicated.
45. Lower Court Records with a copy of this judgment be sent down forthwith to the learned Trial Court for information and necessary action. The Lower Court Records along with the finding about the age of the appellants No. 2 and 4, on the basis of evidence adduced on behalf of the parties, should be sent back in order to dispose of the appeal concerning the aforesaid appellants.
46. The Criminal section of this Court is directed to put up the file of this appeal before this Court immediately after receipt of the Lower Court Records along with the finding of the learned Lower Court regarding the age. Urgent xerox copy of this judgment, be delivered to the learned Advocates for the parties, if applied for, upon compliance of all 'formalities.
Kishore Kumar Prasad, J.
47. I agree.