Allahabad High Court
Shiv Kumar vs State on 21 November, 2025
HIGH COURT OF JUDICATURE AT ALLAHABAD HIGH COURT OF JUDICATURE AT ALLAHABAD CRIMINAL APPEAL No. - 1769 of 1985 Shiv Kumar ..Petitioners(s) Versus State ..Respondents(s) Counsel for Petitioners(s) : R.C.Gupta, Ramesh Prasad Counsel for Respondent(s) : A.G.A. Judgement Reserved On 06.11.2025 Judgement Delivered On 21.11.2025 Judgement Uploaded On 21.11.2025 Court No. - 81 HONBLE AVNISH SAXENA,J.
1. Heard Sri Ramesh Prasad, learned counsel for the appellant and Sri Rajshekhar Srivastava, learned AGA for the State.
2. Appellant-Shiv Kumar has been convicted by judgment and sentenced dated 17.05.1985 passed by Special Judge (E.C.Act), Banda in Sessions Trial No. 49 of 1982 arising out of Case Crime No. 42 of 1981, P.S. Baberu, District Banda, under section 304 IPC, wherein the conviction has been recorded for offence under Section 304 Part II IPC and sentenced to undergo rigorous imprisonment of four years.
3. The FIR has been lodged by Dharampal on 23.02.1981 at 2:30 P.M. for the incident of same day occurred at 10:00 A.M. when the children were at the field eating roasted green peas (Hola). Accused-appellant-Shiv Kumar, aged about 11 years came and asked for fire from the two brother of informant, namely, Shiv Prasad and Rajendra Prasad, aged about 10 years each. On refusal the accused-Shiv Kumar has wielded lathi blow on the head of Shiv Prasad and ran away, which lead to his death while taking to the residence.
4. The arguments of learned counsel for the appellant is confined to the trial of a child by regular court dehors the provisions of U.P. Children Act, 1951, which was repealed by Juvenile Justice Act, 1986.
5. Learned AGA has submitted that the trial has rightly been proceeded by the trial court and the learned trial judge while dealing with the age of accused-appellant has specifically made observation that defence of age of the accused has not been raised during trial by the defence invoking section 83 IPC. Hence the trial court has rightly convicted the accused.
6. This Court has taken into consideration the rival submissions made by the parties and perused the record.
7. It is not the point of dispute that the appellant was 11 years of age at the time of incident. The trial court was also aware of the fact about the age of accused-appellant but denied benefit of section 83 IPC that deals with act of a child above 7 years and under 12 years, provided underneath:
83. Act of a child above seven and under twelve of immature understanding- Nothing is an offence, which is done by a child above seven years of age and under twelve, who has not attained sufficient maturity of understanding to judge of the nature and consequences of his conduct on that occasion.
8. The point argued by defence and dealt with in the judgment under challenge. Relevant paragraph of the judgment is reiterated underneath:-
The question shall again arise at this stage under a new reference whether keeping into mind the age and strata of understanding of the accused about 11 years old, was he doli capax. Being junior in age to the accused, even the deceased was conscious of touchability of Hola by the accused. On his turn, the accused was also fully conscious to the sense of self-exhaulation as to why he could be directed not to touch Hola. It was only this issue on which he hit hard the deceased on his head with the help of his lathi. He has full knowledge of the serious consequence of the blow given with force on the head of the victim. He had full knowledge that the act was so imminently dangerous as to cause death of a tender boy. I have already observed that exception to the offence had not been pleaded on behalf of the accused u/S 83 IPC. What the section contemplates is that the child offender should not know the nature and physical consequences of his conduct. Where the accused is above 7 years of age but under 12, the incapacity to commit an offence arises only when the child has not attained sufficient maturity. Such non-attainment of maturity would have apparently to be specifically pleaded and proved like the incapacity of a person who was alleged to have been of unsound mind at the time of doing an act constituting an offence. Maturity of understanding is to be presumed in the case of such an age group of a child unless the negative be proved on the defence. In construing this section, the capacity of doing that which is wrong is not to be measured much by the years as by the strength of the offender's understanding and judgment. If the defence can be put on his behalf that he had gone to the police station to report the matter, he cannot be said to be a person of such an immature mind as not to conceive knowledge of the act of his wielding lathi with force on the head of a boy younger to him in age.
9. While dealing with a similar issue, the Division Bench, of which I am a member, has passed judgment in Criminal Appeal No. 2125 of 1984 (Kanhaiya and others Vs. State of U.P.) decided on 23.07.2025 and made observation that U.P. Children Act was invoked in 1951, wherein the definition of a child is a person under the age of 16 years. This act was repealed by invocation of Juvenile Justice Act, 1986. It is also observed in that case that this High Court in the case of Mohd. Gufran Vs. State of U.P.1 has made observation about the applicability of the Act. The relevant paragraphs of the judgment that deals with the issue are reiterated underneath :-
11. The learned trial judge while dealing with the age of accused has merely considered that the age of accused-appellant nos. 4 and 5 as more than 12 years, but has not considered them as child and youthful offender in view of Sections 2(4) and (13) respectively of U.P. Children Act, 1951. The Act provides under sub-Section (4) the definition of child under the Act, which means a person under the age of sixteen years, whereas, sub-Section (13) provides the definition of youthful offender meaning any child, who has been found to have committed an offence punishable with transportation or imprisonment.
12. Chapter-IV of the Act deals with youthful offender. On the point of sentence, Section 27 of the Act is reiterated underneath:-
Section 27:Sentences that may not be passed on child.- Notwithstanding anything to the contrary contained in any law, no court shall sentence a child to death or transportation or imprisonment for any term or commit him to prison in default of payment of fine :Provided that a child who is twelve years of age or upwards may be committed to prison when the court certifies that he is of so unruly, or of so depraved a character that he is not fit to be sent to an approved school and that none of the other methods in which the case may legally be dealt with is suitable.
Wherein, by non-obstante clause the trial court is restrained from imposing a sentence on child but it is provided that if a child is 12 years of age or upwards he may be committed to prison only when the court certifies that the child is so unruly, so depraved a character that the court considered it fit to send the child to prison.
13. Section 33 of the Act provides, the method of dealing with children charged with offences and what sentence could be awarded once the court is satisfied about the guilt of the child. The provision is reiterated underneath :-
Section 33:Methods of dealing with children charged with offences.- Where a child charged with any offence is tried by any court, and the court is satisfied of his guilt the court shall, before passing orders, take into consideration the manner in which, under the provisions of this or any other Act enabling the court to deal with the case, the case should be dealt with, namely, whether-
(a) by discharging the offender after due admonition; or
(b) by committing the offender to the care of his parent, guardian, other adult relative or other fit person or such parent, guardian, relative or person executing a bond to be responsible for his good behaviour; or
(c) by so discharging the offender and placing him under the supervision of a person named by the court; or
(d) by committing the offender to the custody of any suitable person, whether a relative or not, who is willing to undertake the care of the offender; or
(e) by releasing the offender on probation of good conduct; or
(f) by sending the offender to an approved school; or ( g) by ordering the offender to pay a fine; or
(h) by ordering the parent or guardian of the offender to pay a fine; or
(i) by dealing with the case in any other manner in which it may be legally dealt with ;or
(j) when the offender is a child of twelve years of age or upwards by sentencing him to imprisonment:
Provided that nothing in this section shall be construed as authorising the court to deal with any case in any manner in which it could not deal with the case but for this section.
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15. As to the presumption and determination of age of child, Section 73 of the Act casts a duty on the court to make an inquiry as to the age of a person before the court. Section 73 is reiterated underneath:-
Section 73: Presumption and determination of age.- (1) Where a person, whether charged with an offence or not, is brought before any court otherwise than for the purpose of giving evidence and it appears to the court that he is a child, the court may make due inquiry as to the age of that person and for that purpose, may take such evidence as may be forthcoming, and may record a finding thereon, stating his age as nearly as may be.
(2) A declaration by the court under the preceding sub-section as to the person brought before it being under the age of sixteen years shall for the purposes of this Act be final and no court shall in appeal or revision interfere with any such declaration.
In the present case the trial judge has specifically mentioned the age of Chhedi and Madan are 15 years and 13 years, respectively. while recording their statements under Section 313 Cr.P.C., and also considered the age of Chhedi and Madan as above 12 years, though the Act specifically provides that a child less than sixteen years of age is a youthful offender. The learned trial judge has committed an error of law and fact in failing to determine the age of the child and sentencing the appellants as an adult.
16. The conviction of accused Madan and Chhedi has been recorded in the year 1984. The appeal is pending since then. The trial court was aware of the age of appellants but the trial judge has sentenced the children ignoring the provision of Section 73 of the Act and has failed to determine their age. The Act of 1951 remained in force till the Union legislature passed the Juvenile Justice Act, 1986, enforced w.e.f., 1st December, 1986. Section 63 of Juvenile Justice Act provides for repeal and savings of all the acts applicable in the State dealing with juvenile. The repealing of Act of 1951 by the Act of 1986 has been dealt with by this High Court in the case of Mohd. Gufran Vs. State of U.P. In paragraph 3 it was held, I, however, find that as the Juvenile Justice Act, 1986 (hereinafter referred to as the Juvenile Act) came into force with effect from 3.12.1986 and in view of provisions of Section 63 of the Juvenile Act, 1986 regarding repeal, the U.P. Children Act 1951 relied upon by the trial court is now no longer in existence and the case has to be proceeded with under the provisions of the Juvenile Act, 1986.... Section 63 of the Juvenile Justice Act is reiterated underneath:-
Section 63 of the J.J.Act: Repeal and savings. If, immediately before the date on which this Act comes into force in any State, there is in force in that State, any law corresponding to this Act, that law shall stand repealed on the said date :
Provided that the repeal shall not affect
(a) The previous operation of any law so repealed or anything duly done or suffered thereunder ; or
(b) Any right, privilege, obligation or liability acquired, accrued or incurred under any law so repealed ; or
(c) Any penalty, forfeiture or punishment incurred in respect of any offence committed against any law so repealed; or
(d) any investigation, legal proceeding or remedy in respect of any such right, privilege, obligation, liability, penalty, forfeiture or punishment as aforesaid;
and any such investigation, legal proceeding or remedy may be instituted, continued or enforced and any such penalty, forfeiture or punishment may be imposed, as if this Act had not been passed.
Even in the act of 1986, the juvenile means a boy, who has not attained the age of 16 years but for a girl the age was 18 years, which was 16 years for both boy and girl in the U.P. Children Act, 1951.
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37. The only point of consideration is whether the youthful offenders/appellants are to be punished like an adult.
38. Section 63 of 1951 Act, though provides for joint trial of child and adult, but the sentence, if any, is to be awarded to the child in accordance with Section 33 of the Act. The learned trial judge though considered the surviving appellants above 12 years of age but had ignored to apply the provisions of Uttar Pradesh Children Act, 1951 in awarding punishment.
39. Section 27 of the Act further clarifies that a child, who is 12 years of age or upward may be committed to prison when the court certifies that the child is (1) so unruly, (2) so depraved a character that he is not fit to be sent to an approved school. The trial judge has not even considered this aspect of punishment and sent the appellants to the prison.
10. From the perusal of the judgement under appeal and the exhibited documents clearly shows that the appellant was child of eleven years of age and a youthful offender within the meaning provided in U.P. Children Act, 1951, therefore, I am of the considered view that the appellant, who was a child and youthful offender at the time of incident, has not been sent to approved school and his trial has been carried out as an adult, shall not further be incarcerated.
11. The trial court has convicted the accused-appellant, the conviction part of the judgment is not challenged in arguments raised by the learned counsel for the appellant, hence this court restricts itself on the point of sentence and has not re-appreciated evidence.
12. The appeal is partly allowed. The sentence of youthful offender is reduced to period already undergone in Sessions Trial No. 49 of 1982 arising out of Case Crime No. 42 of 1981, P.S. Baberu, District Banda, under section 304 Part II IPC.
13. Office is directed to return the trial courts record along with a copy of this judgment to the trial court within ten days.
(Avnish Saxena,J.) November 21, 2025 Abhishek Sri/-