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2004 (2) Crimes 6
Kerala High Court
R. Basant, J.
Girish —Petitioner
versus
State of Kerala—Respondent
Crl.R.P. No. 260 of 1995
Decided on 2-12-2003
Counsel for the parties :
For the Petitioner:Mr. B. Raman Pillai, Advocate.
For the Respondent: Mr. Viju Thomas, Public Prosecutor.
Important Point
Even if no plea is raised by accused that he is juvenile, every court is obliged to apply its mind and come to a definite and positive finding about the age of indictee before proceeding to take up case and deal with indictee.
Headnote:(i) Indian Penal Code, 1860 — Sec-tion 394 — PW1, a 60 years old woman, came out of house to go to toilet at 1.15 a.m. and accused petitioner with co-accused gagged her mouth and took away gold chain and gold studs — Revision against conviction — Question of iden-tity — PW1 had named accused in F.I.R. as they were working with brother-in-law of PW1 — No reason why PW1 would name them falsely — Evidence supported by recovery of robbed article — Prose-cution succeeded in proving its charge. (Paras 8 to 10)
(ii) Juvenile Justice Act, 2000 — Sections 6(2), 15 & 20 — Accused-petitioner convicted u/s. 394 IPC by Courts below — School record showed that he was 15 years and one month on the date of commission of offence — Plea that he was Juvenile was never raised in courts below — Every Court is obliged to apply its mind and reach a definite and positive finding about age of indictee — Juvenile Justice Board alone is competent to deal with a child in conflict with law but no Board had been consti-tuted in the State — Vaccum could not be permitted to remain — In exercise of power u/s. 482 Cr.P.C. Chief Judicial Magistrate in the State appointed to exercise functions of Juvenile Justice Board until Boards were constituted — Section 20 of the Act did not apply to the case as trial was vitiated — Trial was liable to be set aside and matter to be sent back to Juvenile Board but such Court could course great injustice — Proper order tobe passed u/s. 15 of the Act taken up by High Court — Petitioner could not be sentenced to imprisonment — Fit case where Court would be justified in directing payment of fine u/s. 15(1)(d) of Juvenile Justice Act but without imposing any default sentence — Fine of Rs. 3,000/- imposed upon petitioner. (Paras 11, 15 to 27)
Result : Revision disposed of accordingly.
ORDER
R. Basant, J.— The concurrent ver-dict of guilty, conviction and sentence imposed on the petitioner first accused under S. 394 IPC are assailed by him in this R.P.
2. The charge against the petitio-ner/first accused is that he alongwith
the second accused waited outside the house of PW.l on the night of 20.5.1989. When PW.1, a woman aged more than 60 years, came out of her house to go to
toilet at about 1.15 a.m., he along with the second accused caught hold of her, gagged her mouth and took away MO.1 gold chain, MO.2 gold studs and MO.3 silver waist cord worn by her. Both the accused were working as employees of the brother-in-law of the victim PW.1. She was hence able to identify both of them. She lodged an FIR before the police on the very next day i.e. at 9 p.m. on 21.5.89 while she was undergoing treatment at the Hospital. In the attack, she had suffered injuries and was hospitalised for treatment of such injuries. Later both accused persons were arrested. MO.2 ornament was recovered from the possession of PW.7 with whom the petitioner/accused had pledged the same MO.1 gold chain was seized from the house of the petitioner/first accused by the police. MO.3 waist cord was recovered from the possession of PW.6 to whom the second accused had handed over the same after the incident. Recovery of MOs. l to 3 were made under S. 27 of the Evidence Act. After completing the investigation charge-sheet was filed by the police.
3. Both the accused persons denied the offence alleged against them. Thereupon the prosecution examined PWs. l to 15. Exts. Pl to P9 were marked. M.Os. 1 to 4 were also marked.
4. PW.l is the victim lady. Ext. P1 is the F.I. Statement lodged by her. PW.2 is a co-worker of A1 and A2. He had allegedly seen both the accused near the scene on the previous day. PW.3 is the son of PW.l and PW.4 is the son-in-law of PW.l. They were both available in the house where PW.l was residing. PW.5 is a co-worker of accused 1 and 2. PW.6 is the earlier employer of the second accu-sed to whom he had allegedly handed over MO.3 after the incident. It was seized from him under Ext. P2 seizure mahazar. PW.7 is an attestor to Ext. P3 seizure mahazar under which MO.2 which was pledged by A 1 after the incident was recovered under S. 27 of the Evidence Act. PWs. 8 and 9 are Doctors who had initially seen and treated PW.l. Ext. P4 is the wound certificate issued by PWs.8 and P6 is the intimation issued by the Doctor. PW.10 is an attestor to Ext. P5 seizure mahazar for recovery of MO.l from the house of A1. PW.11 attested Ext. P8 scene mahazar. PW.12 is a goldsmith who has signed as attestor to both Exts. P2 and P5. He confirmed that the MOs. l and 2 are made of gold. PWs. 13 to 15 are police officials who had various roles to play in the registration of the crime, its investi-gation and the filing of charge-sheet. Ext. P7 is the FIR registered on the basis of Ext P1 and Ext. P9 is a report submitted by the Investigating Officer to the court. I have already referred to MOs.l to 3. MO.4 is a lungi worn by PW.l.
5. The accused took up a defence of total denial. No defence evidence was adduced. The courts below concurrently came to the conclusion that the prose-cution has succeeded in proving the offence alleged against both the accused. Accordingly they proceeded to pass the impugned judgment. The second accused appears to have accepted the verdict. It is submitted at the Bar that he has not challenged his conviction in revision.
6. Before me the learned counsel for the revision petitioner/first accused and the learned Public Prosecutor have advanced their arguments. The learned counsel for the appellant, first of all raises a new contention with the help of a certificate issued by the Head Master of the School, where the petitioner was studying, that the petitioner/first accu-sed was a juvenile (born on 3.5.74) on the date of the crime-night of 20.5.89. He was hence below the age of 16 years and hence a juvenile. The enti
