Andhra HC (Pre-Telangana)
Amidelu Pottanna @ Pottinaidu vs State Of Andhra Pradesh, Represented By ... on 13 December, 2006
JUDGMENT A. Gopal Reddy, J.
1. The appellant-Amidelu Pottanna @ Pottinaidu (A1) was convicted by the IX Additional District and Sessions Judge, (Fast Track Court), Visakhapatnam for the offence under Section 302 IPC by Judgment dated 30-11-2004 in S.C. No. 88 of 2003 for having committed the murder of Budida Pandanna s/o Chinnulu Dora along with Amidelu Satya Rao-A2 on 15-10-1999. The appellant is alleged to have axed the deceased on right shoulder, right hand back, abdomen and head and A2 by revolving the neck of the deceased on the grouse that the wife of the appellant died due to witchcraft made by the deceased.
2. The case of the prosecution briefly stated as follows:
The appellant (A1), A2 and P.Ws.1 and 2 are tribals and resident of Gatchangi village, Pedabayalu Mandal, Visakhapatnam District. P.W.2 is the married daughter of P.W.1 and the deceased; A1 and A2 are her maternal uncles. P.W.3 is the nephew of the deceased. The appellant along with A2 picked up quarrel with the deceased on 15-10-1999 in the village, suspecting that he was responsible for the death of appellant's wife by practicing sorcery and A2 kicked the deceased and revolved his neck; appellant axed him on various parts of the body, as a result of which the deceased died instantaneously. P.W.1 who is the eye witness to the incident went to the police station and lodged Ex.P1-report with Sub-Inspector of Police-P.W.8 on 18-10-1999 at 13 hours about the murder of her husband on the night of 15-10-1999. On the basis of the same, P.W.8 registered a case in Cr. No. 21 of 1999 under Section 302 r/w 34 IPC and submitted the original FIR- Ex.P12 to the Mandal Executive Magistrate, Pedabayalu and copies to all the officer concerned. P.W.8 examined P.W.1 and recorded her statement under Section 161 Cr.P.C., visited the scene of offence along with special party, prepared the scene observation report-Ex.P8 and rough sketch-Ex.P13 in the presence of P.W.5 and another. P.W.9, Circle Inspector of Police on receipt of FIR on 18-10- 1999 left Paderu on the next day along with staff at about 7 A.M. and reached Lakaiputtubayalu to which place the dead body of the deceased was brought from Gatchangi village, got the dead body photographed through P.W.6, held inquest over the dead body in the presence of P.W.4 and another, examined P.Ws.1 to 3 and three others. Ex.P5 is the inquest report. On 20-10-1999 he arrested A1 and A2 in the presence of P.W.4 and another and on their confession he seized M.O.1-axe stained with blood from A1 covered by Ex.P6. P.W.7, Civil Assistant Surgeon in Community Health Centre, Paderu conducted postmortem examination on 20-10-1999 and issued Ex.P11-postmortem certificate opinion that the deceased would appear to have died of respiratory and circulatory failure due to injury to brain, due to fracture of skull. After competition of the investigation and receipt of report police laid the charge sheet.
3. The accused pleaded not guilty and claimed for trial.
4. In order to prove the guilty of the accused prosecution examined P.Ws.1 to 10 and got exhibited Exs.P1 to P15 and M.Os.1 and 2. No oral and documentary evidence was adduced on behalf of the defense.
5. It is not in dispute that from the beginning till the completion of the prosecution evidence the procedure contemplated under old code has been followed but only at the time of 313 examination the new code was applied in view of G.O.Ms. No. 33 dated 11-03-2004. When the accused examined under Section 313 Cr.P.C. on 18-11-2004 they reported no defense. When the matter is posted for arguments, the accused filed a Memo on 16-03-2004 stating that they are below 18 years of age and they are juveniles on the date of offence. Therefore, both the accused were referred to King George Hospital, Visakhapatnam by order dated 19-03-2004. Report dated 23-06-2004 was received from the hospital authorities stating that age of A1 is 21 years and A2 is 18 to 19 years. On receipt of the said report, records were placed before the Principal Sessions Judge, Visakhapatnam for his opinion as to the applicability of the Juvenile Justice Act, 1986 (for short "1986 Act"), who by order dated 08-09-2004 held that in the absence of any notification extending 1986 Act to the tribal areas, it has no application to the tribal areas and sent back the entire record to the Sessions Judge, Visakhapatnam.
6. On receipt of the record and after going gong through the entire evidence, the learned Sessions Judge by the impugned judgment dated 30-11-2004 convicted the appellant for the offence under Section 302 IPC and sentenced him to undergo imprisonment for life and also imposed fine of Rs. 500/-, in default to suffer simple imprisonment for one month; whereas A2 was found guilty for the offence under Section 323 IPC and sentenced to undergo imprisonment to the period already undergone. Questioning the legality and validity of the said judgment A1 filed the present appeal.
7. Sri E.V. Bhagiratha Rao, learned Counsel for the appellant/A1 would contend that in view of the report submitted by the King George Hospital authorities that the appellant/A1 is 21 years in June, 2004 and he is less than 16 years on the date of incident; he is a juvenile under Section 2(h) of 1986 Act and he cannot be tried by the Criminal Court. The entire trial is vitiated, since it is not tried by Juvenile Court and the same is liable to be set aside. He further contends that doctor gave his opinion that the deceased would appear to have died of respiratory and circulatory failure due to fracture of skull but not mentioned the age of injury. Further, the offence alleged to have taken place on 15-10-1999 at 7 P.M., the report was lodged on 18-10-1999 at 1 P.M. There is abnormal delay in lodging the report and the same is not properly explained by the prosecution. In support of his submission, he placed reliance on the following judgments of this Court.
1. B. Ailaiah v. State of A.P. .
2. Odugu Veeraiah v. State of A.P. 2004 (2) ALT (Crl.) 469 (AP)
8. Per contra, learned Additional Public Prosecutor while sustaining the judgment taken us through the entire evidence.
9. In view of rival submissions, the points that arise for consideration in this appeal are:
(a) Whether non-following the procedure under 1986 Act vitiates the trial and accused is entitled to acquittal?
(b) Whether the prosecution is able to bring home the guilt of the accused beyond reasonable doubt?
10. Before we advert to the first submission that appellant (A1) is a Juvenile below 16 years of age and cannot be tried by the Criminal Court, it is appropriate to notice briefly the relevant Constitutional provisions and about 1986 Act.
11. It is not in dispute Clause (1) of Article 244 of the Constitution makes the provisions of Fifth Schedule shall apply to the administration and control of the Scheduled Areas and Scheduled Tribes in the State.
12. Article 244 r/w Schedule V of the Constitution reads thus:
The provisions of the Fifth Schedule shall apply to the administration and control of the Scheduled Areas and Scheduled Tribes in any State other than the State of Assam.
As regards the law applicable to the Scheduled Areas, the relevant provision is that contained in para 5 of that Schedule of which the material portions are:
5. Law applicable to Scheduled Areas. (i) Notwithstanding anything in this Constitution, the Governor may by public notification direct that any particular Act of Parliament or of the Legislature of the State shall not apply to a Scheduled Area or any part thereof in the State or shall apply to a Scheduled Area or any part thereof in the State subject to such exceptions and modifications as he may specify in the notification and any direction given under this sub-paragraph may be given so as to have retrospective effect.
(ii) The Governor may make regulations for the peace and good government of any, in a State which is for the time being a Scheduled Area.
(iii) In making any such regulation as is referred to in Sub-paragraph (2) of this paragraph, the Governor may repeal or amend any Act of Parliament or of the Legislature of the State or any existing law which is for the time being applicable to the area in question.
13. In exercise of powers under paragraph (3), 5(1) and 5(2) of the Fifth Schedule Governor may repeal or amend the Act of Parliament or State Legislature or any existing law which is for the time being applicable to the area in question i.e. Code of Criminal Procedure, 1898 which is made applicable to the trial for the offence of death or life imprisonment under Section 29B Cr.P.C. (old)
14. The Governor of Andhra Pradesh in exercise of the powers conferred by Sub-paragraph (1) of Paragraph 5 of Schedule V of the Constitution of India, 1950 and Sub-section (2) of Section 1 of the Code of Criminal Procedure, 1973 issued a notification vide G.O.Ms. No. 33, Law (LA &J) Home (Courts-B) Department, dated 11-03-2004 applying Sections 167(2)(a), 374(2) and (3), 428, 438 and 468 of Cr.P.C., 1973 to the tribal areas in the State with effect from 11-03-2004. Earlier to extension of new Cr.P.C., trial for the offence was governed by the provisions of old Cr.P.C. Section 29 B of the old code, which is in paramateria of Section 27 of the new code, reads as under:
29 B Jurisdiction in the case of juveniles: Any offence, other than one punishable with death or imprisonment for life, committed by any person who at the date when he appears or is brought before the court is under the age of fifteen years, may be tried by a district Magistrate or a chief Presidency Magistrate, or by any Magistrate specially empowered by the (State Government) to exercise the powers conferred by Section 8, Sub-section (1), of the Reformatory Schools Act, 1897, or, in any area in which the said Act has been wholly or in part repealed by any other law providing for the custody, trial or under such law to exercise all or any of the powers conferred thereby.
Further, Section 27 of the new code, which is in paramateria of Section 29 B of the old code, is not made applicable to the tribal areas, as no notification is issued, as contemplated under Sub-section (2) of Section 1 proviso to new Code.
15. The word "juvenile" has been defined under Section 2(h) of 1986 Act, which means a boy who has not attained the age of sixteen years or a girl who has not attained the age of eighteen years. Juvenile Court has been defined under Section 2(i) of 1986 Act, which means a Court constituted under Section 5, which reads thus:
5 Juvenile Courts: (1) Notwithstanding anything contained in the Code of Criminal Procedure, 1973, the State Government may, by notification in the Official Gazette; constitute for any area specified in the notification, one or more Juvenile Courts for exercising the powers and discharging the duties conferred or imposed on such Court in relation to delinquent juveniles under this Act.
(2) A Juvenile Court shall consist of such number of Metropolitan Magistrates or Judicial Magistrates of the first class, as the case may be, forming a Bench as the State Government thinks fit to appoint, of whom one shall be designated as the Principal Magistrate; and every such Bench shall have the powers conferred by the Code of Criminal Procedure, 1973, on a Metropolitan Magistrate or, as the case may be, a Judicial Magistrate of the first class.
(3) Every Juvenile Court shall be assisted by a panel of two honorary social workers possessing such qualifications as may be prescribed, of whom at least one shall be a woman, and such panel shall be appointed by the State Government.
The non obstante clause under Sections 5(1) and 7(1) excludes the provisions of Cr.P.C. and any other law in respect of cases involving juvenile accused and the Act also excludes the jurisdiction of Sessions Court to try the cases even punishable with death or life imprisonment.
16. Further, Section 7 of 1986 Act reads thus:
(1) Where a Board or a Juvenile Court has been constituted for any area, such Board or Court, shall, notwithstanding anything contained in any other law for the time being in force but save as otherwise expressly provided in this Act have power to deal exclusively with all proceedings under this Act relating to neglected juveniles or delinquent juveniles, as the case may be:
Provided that a Board or a Juvenile Court may, if it is of opinion that it is necessary so to do having regard to the circumstances of the case, transfer any proceedings to any Juvenile Court or Board, as the case may be:
Provided further that where there is any difference of opinion between a Board and a Juvenile Court regarding the transfer of any proceedings under the first proviso, it shall be referred to the Chief Metropolitan Magistrate or, as the case may be, the Chief Judicial Magistrate for decision, and in a case where the District Magistrate is functioning as a Board or a Juvenile Court, such difference of opinion shall be referred to the Court of Session, and the decision of the Chief Metropolitan Magistrate or Chief Judicial Magistrate or, as the case may be, the Court of Session on such reference shall be final.
(2) Where no Board or Juvenile Court has been constituted for any area, the powers conferred on the Board or the Juvenile Court by or under this Act shall be exercised in that area, only by the following, namely:
(a) the District Magistrate; or
(b) the Sub-Divisional Magistrate; or
(c) any Metropolitan Magistrate or Judicial Magistrate of the first class, as the case may be.
(3) The powers conferred on the Board or Juvenile Court by or under this Act may also be exercised by the High Court and the Court of Session, when the proceeding comes before them in appeal, revision or otherwise.
17. On the date when the Memo was filed to determine the age of the appellant/A1, 1986 Act has been repealed by Juvenile Justice (Care and Protection of Children) Act, 2000 (for short "2000 Act") which came into force with effect from 01-04-2001.
18. Sub-section (2) of Section 69 of 2000 Act saves that anything done or any action taken under the 1986 Act shall be deemed to have been done or taken under the corresponding provisions of 2000 Act. Thus, although 1986 Act was repealed by the 2000 Act, anything done or any action taken under the 1986 Act is saved by Sub-section (2), as if the action has been taken under the provisions of the 2000 Act. Section 20 of the 2000 Act reads as under:
20. Special provision in respect of pending cases: 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.
19. Section 2(k) of 2000 Act defines juvenile as under:
2(k) "juvenile" or "child" means a person who has not completed eighteenth year of age;
20. Section 3 of the 2000 Act reads as follows:
3. Continuation of inquiry in respect of juvenile who has ceased to be a juvenile: Where an inquiry has been initiated against a juvenile and during the course of such inquiry the juvenile ceases to be such, then, notwithstanding anything contained in this Act or in any other law for the time being in force, the inquiry may be continued and orders may be made in respect of such person as if such person had continued to be a juvenile or a child.
21. Thus, the above provisions make it clear that where an inquiry has been initiated and the juvenile ceases to be a juvenile i.e. crosses the age of 18 years, the inquiry must be continued and orders made in respect of such person as if such person had continued to be a juvenile.
22. A Full Bench of this Court in B. Ailaiah's case (supra) held as under:
"Exclusively" is synonym to absolute ouster and in pari materia with the expression "triable exclusive" used in Section 209 of the Code of Criminal Procedure. A combined reading of Section 5(1) and Section 7(1) of the Act would produce an inevitable result that except the court called 'Juvenile Court' constituted under the Act to exercise the powers and perform the duties, no other Court or authority shall have jurisdiction or power to deal with delinquent juveniles in any proceedings under the Act or any other proceedings in any other law for the time being in force. The consequential effects is that none of the Courts namely - Court of Sessions, Judicial Magistrate of First Class, Metropolitan Magistrate, Judicial Magistrate of the II Class or Executive Magistrate in the area in which the delinquent is said to have committed an offence, had any power or jurisdiction to deal either with the delinquent juvenile or the proceedings against him in relation to an offence alleged to have committed by him. However, if no Juvenile Court is constituted under Section 5 of the Act, the Magistrate of 1st Class in whose jurisdiction the offence was committed by the appellant will be entitled to exercise the powers conferred on the Juvenile Court under the Act.
23. To apply the said ratio to the Scheduled Areas where the old code is made applicable on the advent of the Constitution unless the Governor who is authorized to direct that any particular Act of Parliament or of the Legislature of the State shall not apply to a Scheduled Area or shall apply, only subject to exceptions or modifications, the Juvenile Justice Act cannot be made applicable to the Scheduled Areas. Admittedly, no such notification has been issued by the Governor extending the Juvenile Justice Act with such modification to the Scheduled Areas followed by constitution of Juvenile Courts under Section 5 in consultation with the High court to try the juvenile.
24. The Supreme Court in Pratap Singh v. State of Jharkhand after considering the scope of Section 20 of the 2000 Act held as under:
Section 20 of the Act as quoted above deals with the special provision in respect of pending cases and begins with a non-obstante clause. The sentence 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 came into force has great significance. The proceedings in respect of a juvenile pending in any court referred to in Section 20 of the Act are relatable to proceedings initiated before the 2000 Act came into force and which are pending when the 2000 Act came into force. The term any court would include even ordinary criminal courts. If the person was a juvenile under the 1986 Act the proceedings would not be pending in criminal courts. They would be pending in criminal courts only if the boy had crossed 16 years or the girl had crossed 18 years. This shows that Section 20 refers to cases where a person had ceased to be a juvenile under the 1986 Act but had not yet crossed the age of 18 years then the pending case shall continue in that court as if the 2000 Act has 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, shall forward the juvenile to the Board which shall pass orders in respect of that juvenile.
It was further held as under:
...the provisions of 2000 Act would be applicable to those cases initiated and pending trial/inquiry for the offences committed under the1986 Act provided that the person had not completed 18 years of age as on 1-4-2001.
25. In Ram Kripal Bhagat v. State Of Bihar the Supreme Court held that in the absence of any notification issued by the Governor extending the Acts of Parliament or State Legislature to the Scheduled Areas as envisaged under Fifth Schedule applying the Acts to any such Schedule Area with such modification the same cannot be made applicable to agency areas.
26. When once the Juvenile Justice Act has not been extended to the Scheduled Area where the offence has been committed, we do no see any merit in the contention of the counsel for the appellant that the entire trial is vitiated since it is not tried by Juvenile Court.
27. As already noticed at the beginning of the trial no objection has been raised with regard to trial of the offence by the Sessions Judge nor disputed with regard to the age of the accused shown as 22 years in the charge sheet, only after completion of the trial a memo was filed stating that the appellant is a juvenile and cannot be tried by the Sessions Judge. The doctor who issued the certificate has not been examined to prove the same. At the most the opinion given by him is only an expert opinion under Section 45 of the Evidence Act. The onus of proving that the accused was below 16 years as on the date of commission of offence is heavily lies on them. When they have failed to do so, they could not be held to be juvenile under Section 2(h) as on the date of commission of offence. Since the doctor who issued the certificate has not been examined, no credence can be given to the said certificate for coming to a conclusion that the accused is below 16 years of age. Further, the doctor who examined the appellant in June, 2004 opined that he is 21 years age. If we deduct 5 years from his age, he crossed 16 years as on June, 1999, whereas the offence has taken place on 15-10-1999.
28. In view of the same, we do not see any merit in the submission made by the learned Counsel for the appellant that the appellant is juvenile as on the date of commission of offence.
29. Learned Counsel for the appellant made feeble submission that there is delay in lodging the report, which has not been properly explained by the prosecution. Therefore, appellant/accused is entitled to benefit of doubt.
30. P.W.1 who is the wife of the deceased and eye witness to the incident categorically deposed that on the date of incident her husband returned home after attending funeral ceremony of their relatives and requested to provide hot water for bath and she arranged the same; at that time A2 came and kicked her husband on the chest, the deceased fell down on the ground; then A1 hacked the deceased on the shoulders, on the back of neck, stomach and on the back of the head. At that time her daughter-P.W.2 and Budidha Lakshmayya-P.W.3 were also present. In the cross-examination she admitted that the day on which offence occurred was a winter season, by that time it was shrouded by darkness. If they start at 6 A.M., they will reach the police station at 10 A.M. In Ex.P1- report itself she categorically explained the delay in lodging the report stating that she could not think what to do after the incident. Hence on the next day she consulted the village elders and on their advice she decided to lodge a report and accordingly with the help of villagers they reached outskirts of Kumada village on Sunday evening and stayed there on the night and on the next day they lodged the report. P.W.2 who is the daughter of the deceased corroborated the evidence of P.W.1 in all material particulars. P.W.3 who is the brother's son of the deceased and eyewitness to the incident also corroborated the evidence of P.W.1. P.W.4, who is the Village Administrative Officer, deposed that he acted as mediator to the inquest and also at the time of arrest of the accused, and at the instance of accused M.Os.1 and 2-axe, which is used in the crime, and gochi respectively are seized by the police. P.W.7, the doctor who conducted postmortem examination over the dead body of the deceased found the following injuries:
External injuries: (1) Cut laceration of 8 x 4 cms into bone present on back of center of head on occipital region of scalp. (2) contusion of 10 x 8 cms. on right side of the head, 8 cms. above the right ear on right parietal region of scalp. (3) Cut laceration of 8 x 3 x 3 cms. Present on right back chest, on right scapular region. (4) cut laceration of 6 x 3 x 2 cms. On right back lower abdomen region from right loin to right iliac crest region. (5) Cut laceration of 8 x 2 x 2 cms. On left front lower abdomen region 4 cms. Above the left iliac crest and 4 cms. below and left to umbilicus. (6) Cut laceration of 6 x 3 x 3 cms. on back of right wrist region.
Internal injuries: (1) Cut fracture of 6 x 11/2 cms. on back on center of wault of skull on occipital bone of skull. (2) Brusing of 12 x 10 cms. of all the underlying tissues of right side of scalp. (3) Fissured fracture of 10 cms. Long present on right parital bone of wault of skull, extending into base of the skull. (4) Diffuse subdural hemorrhage and sub-archnoid hemorrhage present all over the brain. (5) Fissured fracture of 8 cms. Long present on right middle bone of middle base of skull, as a continuation fissured fracture of internal injury No. 3.
His evidence also corroborates the ocular evidence of P.Ws.1 to 3. P.W.9, the Inspector of Police deposed that on receipt of FIR he left Paderu on 19-10-1999 and reached Lakaiputtubayalu where the dead body of the deceased was brought and conducted inquest over the dead body of the deceased and sent the dead body for postmortem examination.
31 The very fact that the village is in remote tribal area and since P.W.1 being an illiterate woman consulted the elders on the next day and then lodged the report-Ex.P1. The delay in lodging the report has been properly explained by the prosecution. This Court in Odugu Veeraiah's case 2004 (2) ALT (Crl.) 469 (AP) (supra) after holding that Juvenile Justice Act, 1986 has not been extended to the tribal areas set aside the conviction on the ground that the trial was proceeded under the new code. Whereas in the present case the entire trial was proceeded under the old code, hence, the same is misplaced to the facts of the present case.
32. After going through the entire evidence, we are convinced that the prosecution is able to bring home the guilt of the accused beyond reasonable doubt. The facts and circumstances found to be established by the Sessions Judge are well founded and fully supported by evidence on record. Since we find ourselves in agreement with the conclusions arrived at by the Sessions Judge, the same do not call for any interference.
33. Criminal Appeal is dismissed by confirming the judgment of the trial court in all respects.