Karnataka High Court
H C Shama D/O Chand Pasha vs State Of Karnataka on 22 November, 2012
Bench: D.V.Shylendra Kumar, H.S.Kempanna
IN THE HIGH COURT OF KARNATAKA AT BANGALORE
DATED THIS THE 22ND DAY OF NOVEMBER, 2012
PRESENT
THE HON'BLE MR.JUSTICE D V SHYLENDRA KUMAR
AND
THE HON'BLE MR.JUSTICE H S KEMPANNA
Criminal Appeal No.365 of 2010 [DB-C]
BETWEEN:
H C SHAMA
D/O CHAND PASHA
AGED ABOUT 18 YEARS
STUDENT
R/O HEBBANI VILLAGE
MULBAGAL TALUK
KOLAR DISTRICT ... APPELLANT
[BY SRI HASHMATH PASHA, ADV.,]
AND:
STATE OF KARNATAKA
BY NANGALI POLICE STATION
KOLAR DISTRICT ... RESPONDENT
[BY SRI P M NAWAZ, ADDL. SPP]
THIS CRL.A. FILED UNDER SECTION 374(2) OF CODE OF
CRIMINAL PROCEDURE BY THE ADV. FOR THE APPELLANT PRAYING
THAT THIS HON'BLE COURT MAY BE PLEASED TO SET ASIDE THE
JUDGMENT AND ORDER OF CONVICTION DATED
30.1.2010/1.2.2010 PASSED BY THE II ADDL. S.J., KOLAR, IN SPL.
SC NO.7/2008- CONVICTING THE APPELLANT/ACCUSED FOR THE
OFFENCE P/U/S 448, 302 OF IPC AND SEC. 3[2][V] OF SC/ST [POA]
ACT, 1989 AND ETC.
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THIS APPEAL COMING ON FOR ORDERS, THIS DAY, D V
SHYLENDRA KUMAR, J., DELIVERED THE FOLLOWING:
JUDGMENT
This appeal under section 374[2] of the Criminal Procedure Code is by the convicted accused in Spl. Sessions Case No.7/2008 on the file of the Court of the II Additional Sessions Judge, Kolar, who had been charged with the offences punishable under sections 448, 302 of IPC and section 3[2][v] of the Scheduled Castes & Scheduled Tribes [Prevention of Atrocities] Act, 1989.
2. The learned Judge of the Sessions Court, on finding the accused guilty of the offences punishable under sections 448, 302 of IPC and section 3[2][v] of the Scheduled Castes & Scheduled Tribes [Prevention of Atrocities] Act, 1989, has imposed punishment of life imprisonment with fine of Rs.2,000/- and in default sentence of one month simple imprisonment in respect of the offence punishable under section 302 of IPC and for a period of six months simple imprisonment for the offence punishable under section 448 3 of IPC and also subjected to life imprisonment in respect of offence punishable under section 3[2][v] of the Scheduled Castes & Scheduled Tribes [Prevention of Atrocities] Act, 1989 and ordered all sentences to run concurrently.
3. It is against this conviction and sentence, the present appeal.
4. The prosecution case was that the accused person has committed the murder of one Sulochana, wife of PW.8 on 12.08.2008 at about 5.30 pm by inflicting fatal wounds on her body by using a knife and at the house of the deceased person in M. Gollahalli Village, Mulbagal Taluk. The prosecution had indicated that motive for the murder was that the accused person had intimacy with the husband of the deceased because of their earlier acquaintance; that she was jealous of the deceased person and therefore has committed the crime, to eliminate the deceased. 4
5. To make good the prosecution case, the prosecution had examined twenty three witnesses, marked Exhibits.P1 to P18[a] and had produced material objects 1 to 9. On behalf of the defence, contradictions were marked as per Exhibits.D1 to D5.
6. It is on appreciation of such evidence, the learned Judge of the Sessions Court found accused person guilty of the offences as already noticed.
7. During the pendency of this appeal, an application was filed on behalf of the appellant under section 391 of Cr.PC seeking for receiving additional evidence and to produce certain documents for such purpose, mainly with the object of claiming the benefit of the provisions of section 7A of the Juvenile Justice [Care and Protection of Children] Act, 2000 [for short 'the Act']. The application was filed on 13.07.2012 before this court and this court passed the order on 5.9.2012 allowing the application and directed the II Additional Sessions Judge, Kolar, to conduct an enquiry to 5 determine the age of the applicant, namely, appellant by following due procedure and to forward the order/report to this court. The application was mainly to contend that as on the date of the commission of the offence i.e., as on 12.08.2008 the appellant - applicant was a juvenile being less than eighteen years of age as the applicant's date of birth was 15.08.1990.
8. If the appellant's version is to be accepted, the appellant will be three days short of completing the age of eighteen on the date of commission of the offence and will fit into the definition of 'juvenile' as defined under section 2[k] of the Act and also person having committed an offence is a 'juvenile in conflict with law' as defined under section 2[l] of the Act. Sections 2[k] and 2[l] of the Act read as under:
"2[k] 'juvenile' or 'child' means a person who has not completed eighteenth year of age;
2[l] 'juvenile in conflict with law means a juvenile who is alleged to have committed an offence and has not completed eighteenth year of 6 age as on the date of commission of such offence."
9. The learned Judge of the Sessions Court has as per the directions issued by this court held an enquiry to determine the age of the appellant on the date of commission and has passed an order on 3.10.2012 opining that as on 12.08.2008 the applicant - Kumari H.C. Shama, daughter of Chand Pasha, was a juvenile and that she was a juvenile in conflict with law as she had not completed her eighteenth year of age. It is also indicated in this order that as on the date of commission of offence, she was aged 17 years 11 months and 362 days and therefore was short by three days to complete the age of eighteen. For the purpose of ascertaining the age of the accused - appellant, the learned Judge of the Sessions Court had summoned the original admission register maintained at the school where the appellant - applicant had undergone course of study and had also looked into the marks sheet produced by the appellant - applicant as Exhibit.P2 in the examination 7 conducted by the Karnataka Secondary Educational Examination Board.
10. In the entry corresponding to the name of the accused person, the original admission record of the school and entry is to the effect that the date of birth of the student by name Shama is 15.08.1990. The SSLC examination marks card - Exhibit.P2 also indicates the same date of birth. The school leaving certificate - Exhibit.P3 also confirms this and in the light of such evidence and other exhibits, the learned Sessions Judge opined that 15.08.1990 is the date of birth of the accused person and therefore on the day of commission of offence, she was a juvenile in conflict with law.
11. The matter is listed for orders before the court on receipt of the report.
12. Sri. Hashmath Pasha, learned counsel for the appellant submits that in the wake of the report of the 8 learned Judge of the Sessions Court opining that the appellant was a juvenile in conflict with law on the date of commission of offence, provisions of section 7A of the Act are attracted and therefore in the normal course, the court should record that the sentence imposed by the trial court is of no effect in view of the provisions of section 7A[2] of the Act and it should be sent to the Juvenile Board for passing appropriate orders.
13. For the purpose of the appeal and to get over the effect of conviction, submission of Mr. Hashmath Pasha, learned counsel is that though this court has not gone into the merits of the appeal and therefore finding of conviction cannot be automatically set aside, nevertheless, has drawn our attention to the provisions of sections 6, 7A, 15, 16 and 19 of the Act. While Mr. Hashmath Pasha, learned counsel does not dispute that all the provisions of Cr.PC except Chapter-VIII also applies to the proceedings before a Juvenile Board and the matter should have been examined 9 by the Juvenile Board instead of the Sessions Court which has held the trial, nevertheless, submits that an observation should be made with regard to the aspect of the order of conviction recorded by the Sessions Court not to come in the way of the appellant in her career and in her life as a stigma; that therefore an observation should be made holding that it shall not act as a disqualification etc.
14. Mr. Hashmath Pasha, learned counsel for the appellant has also placed reliance on the Judgment of the Supreme Court in support of his submissions in the case of 'DHARAMBIR v. STATE [NCT OF DELHI] AND ANOTHER' reported in 2010 [2] SCC [Crl] 1274, holding that a person who is a juvenile can claim benefits of the provisions of the Act as amended by Act No.33/2006 before any court even before the appellate court and even while juvenile had been convicted by regular court without the knowledge of the person being juvenile and had been serving sentence pursuant to conviction.
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15. It is also submitted that it is the age of the person on the date of commission of offence which is relevant for the purpose of holding as to the person is juvenile or otherwise.
16. Reliance is also placed on the Judgment of the Supreme Court in the case of 'VIJAY SINGH v. STATE OF DELHI' reported in 2012 AIR SCW 4877 to submit that this court has the power to look into the provisions of the Act and to pass appropriate orders warranted in the circumstances as the powers of the High Court under the provisions of section 6[2] of the Act is coextensive with the powers that can be exercised by the Board under the provisions of the Act and therefore has submitted that an order can be passed by this court invoking the provisions of section 15[1] of the Act.
17. It is also submitted that as in the case cited above, the Supreme Court having taken the note of the fact that the person had already served the sentence for the period of 2 11 years 4 months 4 days and the punishment imposed by the court was rigorous imprisonment for the period of five years, while uphold the conviction, nevertheless, set aside the sentence imposed on the appellant and therefore set the appellant at liberty. In the present case also, the appellant having already undergone imprisonment for more than three years as of now and with the maximum period of detention of a juvenile in conflict with law who is found guilty of the same being for a period of three years, there is no need to send the matter to the Board for passing an appropriate order, but the sentence can be set aside for the remaining period and the juvenile may be ordered to be set at liberty.
18. Mr. P M Nawaz, learned Additional State Public Prosecutor appearing for the respondent, on his part, while did want to look into the record of the Sessions Court relating to holding of the enquiry for ascertaining the date of birth and after looking into the record, has submitted that the finding is recorded only based on the SSLC marks card 12 and school admission register and not any original date of birth or any material had been placed in this regard; that no birth certificate under the provisions of Registration of Births and Death Act, had been produced; that the offence committed is a very serious and heinous offence and therefore the order of conviction cannot be in any way set aside unless on merits it is justified and further that no need for this court to make any observations for removal of disqualification attaching due to the order of conviction.
19. We have bestowed our attention to the submissions made at the Bar.
20. In view of the introduction of section 7A of the Act with effect from 22.08.2006 by Act No.33 of 2006, a claim of the person being juvenile or juvenility can be raised before any court. The application therefore is in order to put forth such a claim and with the learned Judge of the Trial Court having given a finding that the accused person in fact was a juvenile 13 on the date of commission of the offence, we accept this report and the order passed by the learned Judge of the trial court regarding the finding of fact of the date of birth of the appellant - applicant.
21. The normal course as fairly submitted by Sri. Hashmath Pasha, learned counsel for the appellant and as is the position of law, the matter should be sent to the Juvenile Board for passing appropriate order. We find on a combined reading of the provisions of sections 15 and 16 of the Act which enables the Board to pass an order on being satisfied that a juvenile has committed an offence, which are as per clauses [a] to [g] of section 15[1] of the Act and the provisions of section 16 of the Act which acts as a rider and imposes restriction on the power to be exercised under section 15 of the Act indicates that neither the person can be sentenced to death nor imprisonment for any term which may extend to imprisonment for life. However, the provisos to sub-sections [1] and [2] of section 16 on a combined 14 reading indicating that in the case of a person who has attained the age of sixteen years and has committed an offence of serious nature. The Board may order the juvenile in conflict with law in the interest of the safety of other juveniles to be kept in a special place of safety and the maximum period that such a person can be kept as per the proviso to sub-section [2][b] not to exceed the maximum period as indicated in section 15 which is three years, the combined effect of these two provisions only indicates that the maximum period of detention even in a special home even in the case of a juvenile above the age of sixteen years and who has committed a serious offence, cannot exceed the period of three years and therefore that appears to us to be the highest punishment that can be imposed on a juvenile under the provisions of the Act.
22. Insofar as the aspect of the observation to be made regarding the removal of disqualification due to conviction is concerned, while we cannot as indicated earlier set aside the 15 order of conviction passed by the court of Sessions without going into the merits of the case and which Mr. Hashmath Pasha, learned counsel for the appellant has fairly submitted it is not necessary for the purpose of disposal of the appeal and in view of the Judgment of the Supreme Court in VIJAY SINGH'S case [supra], the order of conviction is sustained, we do not propose to set aside the conviction, but instead find it is possible to act under the provisions of section 19 of the Act, in the sense that, we only notice the legal position as it presents under section 19 of the Act.
23. Section 19[1] of the Act clearly indicates that even when person has been convicted of an offence under any law and in the instant case under the provisions of Indian Penal Code and the Scheduled Castes & Scheduled Tribes [Prevention of Atrocities] Act, 1989, the person shall not suffer disqualification if any attaching to a conviction of the nature under the other law. In fact, section 19[2] of the Act enables the Board to pass an order positively to direct 16 removal of the relevant records resulting in the conviction after the expiry of the period of the appeal or after a reasonable period as per the rules etc.
24. For the purpose of this appeal, we observe that section 19[1] of the Act positively indicates that a person though convicted under other laws will not suffer a disqualification attached to conviction.
25. In the result, this appeal is allowed in part. While we uphold the conviction, set aside the sentence as imposed by the trial court in respect of the offences with which the appellant was charged and also order that for the purpose of the order being passed under the provisions of section 15 of the Juvenile Justice [Care and Protection of Children] Act, 2000, the period of imprisonment already underwent by the appellant so far, is sufficient and therefore direct the appellant to be set at liberty.
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26. We direct the operative portion of this order to be sent to Central Prison, Bangalore, immediately.
Sd/-
JUDGE Sd/-
JUDGE AN/-