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2004 (2) Crimes 106
Rajasthan High Court (DB)
Rajesh Balia and O.P. Bishnoi, JJ.
Rafiq Khan—Appellant
versus
State of Rajasthan—Respondent
D.B. Criminal Appeal No. 501 of 2002
Decided on 5-12-2003
For the Appellant :Mr. Sandeep Mehta and Mr. Vineet Jain, Advocates.
For the Respondent: Mr. K.R. Bishnoi, Public Prosecutor.
Important Point
Where trial has been conducted by Court other than the Juvenile Court in the case of a juvenile under the Juvenile Justice (Care and Protection of Children) Act 2000, appropriate course open to such other Court in case it finds accused guilty is to send the matter to Juvenile Board for passing appropriate order.
Headnote:(i) Indian Penal Code, 1860 — Section 302 — Appellant convicted under — Appellant stabbed deceased on left side of his stomach — Nothing in statement of eyewitness which could be held against his credibility — Incident took place over altercation about wires of tubewell — Death was caused without premeditation and without any intention — Injury was caused with knowledge that it might result in death — Offence would fall u/s 304, Part II, IPC. (Paras 6 & 7)
(ii) Juvenile Justice (Care and Protection of Children) Act, 2000 — Sections 2(k), 3, 15(1)(e) and 20 — Appellant convicted for offence of murder committed on 9-5-1998 — Appeal — Offence found one u/s. 304 Part II, IPC — On the date of incident age of appellant was 16 years 7 months & 21 days — Appellant was entitled to benefit of the Act, 2000 which came into force during pendency of trial — Appropriate course for trial court would have been that after recording conviction, matter should have been sent to Juvenile Board for passing appropriate order in terms of Section 15 or 16 of the Act — Fit case in which instead of directing appellant to Juvenile Court, by setting aside the sentence, he be released on probation of good conduct for three years. (Para 15)
Held: Section 20 of the Act of 2000 has extended the operation of the Act of 2000 to all the proceedings in respect of juvenile pending in any court, in any area on the date on which the Act came into force in that area, the proceedings shall be continued in that Court in which it was pending at the time of commence-ment of the Act as if the Act of 2000 has not been passed. However, it further provided that 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 such 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 enquiry under this Act that a juvenile has committed the offence. (Para 30)
The purport of Section 20 is apparent that though a case pending at the time of commencement of the Act of 2000 may be continued in the Court in which it was pending at the time of commencement of the Act, notwithstanding that it was not pending in a juvenile court, the proceedings shall be continued and culminated by the Court in which the proceedings are pending. However, so far as passing of sentence under the Act of 2000 is concerned, the Court shall not pass the sentence and the matter will be sent to the Board which shall pass the order in respect of that juvenile in accordance with the provisions of the Act. (Para 31)
In view of the aforesaid it appears that in such cases where trial has been conducted by the Court other than Juvenile Court in the case of a juvenile the appropriate course open to such other court in case it finds the accused guilty to record the finding of guilt and send the matter to the Juvenile Board for passing an appropriate order in terms of Section 15 or Section 16 of the Act of 2000. (Para 32)
In the facts and circumstances, we are inclined to accept this submission as it is in consonance with the provisions of the Act of 2000 and other Acts referred to above and also in accordance with the law laid down by the Supreme Court. (Para 34)
Accordingly, we direct that the appellant’s conviction is modified from Section 302 to Section 304 Part II, but the sentence is set aside and he be released on probation of good conduct for the period of three years subject to execution of bail bonds in the sum of Rs. 20,000/- to the satisfaction of the trial court. (Para 35)
Result: Appeal disposed of accordingly.
ORDER
R. Balia, J.— For the occurrence, which took place at 12 noon on 9-5-1998 at Badi Sadri, the appellant was tried for the offence u/s. 302 IPC. The FIR in respect of occurrence was lodged by Mushtak Khan S/o Mansoor Khan at 12.40 on the same date alleging that while he was sitting at the shop of Sohanlal Pan Wala, situated near Bohro Ki School, Devi Singh Rajpurohit informed him that his brother, Shabbir Khan has been stabbed by Rafiq Khan
S/o Vazir Khan, Kapasiya Bazar, Near Maszid and he has been taken to hospital by Shakur Mohammad and on reaching hospital, he found that Shabbir Khan is lying dead at the operation theatre and his brother Shakur Mohd. was standing there and Shakur Mohd. informed him that his brother Shabbir Khan was going towards the market and Rafiq came from the market and near Maszid Rafiq stabbed on the left side of his stomach. He tried to intervene, but Rafiq has escaped with the knife in his house. He also stated that a dispute was going on between Rafiq and the informant’s family concerning land and this morning there has been altercation in respect of wires of tubewell between Rafiq and Shabbir Khan.
2. The “Parcha Bayan” is Ex. P7. The post-mortem report is Ex. P8 wherein a stab wound 3 cm. from skin to chest wall and 5 cm. from chest wall to lung was found on the person of Shabbir Khan and the injury was ante-mortem 4-6 hours before examination. The finding of the post-mortem was that the death is due to direct injury to the vital organs (lungs) resulting into collapse and haemothorox and excessive haemorrhage from the wound causing cardio pulmonary arrest. The post-mortem report, Ex. P8 has been proved by Dr. Gyan Mal Sankhla, PW-4. He has stated that if the proper bandage would have been given and the patient would have been brought to hospital within 15-20 minutes, he could have been saved.
3. The eyewitness, Shakur Mohd. was examined as PW-2. He stated that while he was working outside his house on 9-5-1998 at about 11.30 AM, Shabbir Khan and Rafiq Khan had talk about tubewell and they fought and in that fighting Rafiq, who was having knife with him stabbed Shabbir Khan with that knife. They have met near Maszid. He has taken Shabbir Khan to hospital and he died on the way. In his cross-examination, he stated that he is related to both, deceased as well as the accused. Shakur Mohd. has stated that place where the incident has occurred is about 5-7 steps from the place he was working. He has denied the suggestion that the deceased Shabbir Khan has tried to hit the accused with the knife. There is nothing in the statement of Shakur Mohd., which can be held against his credibility. The fact that there has been altercation about the wires of tubewell on that day also finds corroboration from the statement of PW-1, who otherwise has been declared hostile witness that there has been fight between Shabir Khan and Rafiq Khan on that day. The recovery of the weapon of offence i.e. knife at the instance of the accused and it being found stained with human blood is also proved on record. The information given by the accused leading to recovery of knife, Ex. P17 and the recovery memo of knife, Ex. P4 has been proved by PW-13 Kishan Singh. The FSL report Ex. P16 states the said knife was stained with blood and it was human blood.
4. In the aforesaid circumstances, it is established beyond reasonable doubt that in the altercation, which took place near Maszid at between 11.30 to 12 AM on 9-5-1998, Shabbir died as a result of stab wound caused by Rafiq Khan, accused-appellant.
5. Learned counsel for the appe-llant has urged that even in that event it is aptly clear from the very evidence that act was not premeditated and no inten-tion on the part of accused to kill Shabbir Khan is made out.
6. It was pointed out by the learned counsel that at best it can be said that a fight, which took place on the spur of moment, about laying of wires of tubewell in which stab injury was caused to deceased S
