ORISSA HIGH COURT
I. Mahanty and K.R. Mohapatra, JJ.
Jituna @ Jyotiprakash Sahoo
and Anr. —Appellants
versus
State of Odisha —Respondent
CRLA No.333 of 2005
Decided on 11.10.2017

IMPORTANT POINT
Question with regard to the determination of juvenility can be raised and adjudicated in all pending cases including trial, revision, appeal or any other criminal proceeding in respect of the JCL in any Court and such question, if raised, has to be determined, even if the juvenile ceases to be so on or before the date of commencement of this Act.

Headnote:(i) Juvenile Justice (Care and Protection of Children) Act, 2000—Sections 2(i), 2(k) and 20—Accused appellant convicted u/s 302/34 IPC by trial court—Appeal—Plea that appellant was juvenile on the date of incident—Juvenile Justice Board pursuant to directions conducted inquiry and submitted report to effect that appellant was 17 years 5 months and 18 days on the date of incident—Reliable evidence on record to show that appellant and other accused being armed with Bhujali and pistol caused injuries to deceased by bullet and sharp cutting weapon—Question with regard to determination of juvenility could be raised and adjudicated in any pending case at any stage i.e. trial, revision or appeal and such question was to be determined even if juvenile ceased to be so on or before date of commencement of Act—Whether appellant being a juvenile, his trial by Sessions Court was vitiated? No.

       Held: Having heard learned counsel for the parties and on perusal of report of the JJ Board and other relevant records, it appears that the JJ Board has conducted a detailed enquiry in terms of Rule 12 of the JJ Rules. He has recorded the statement of witnesses, as detailed above on oath and marked the documents as Exts.1 to 4 produced by the witnesses. On a threadbare discussion of the materials on record, learned Principal Magistrate came to a categorical conclusion that the appellant No.1 was a juvenile on the date of commission of offence, i.e., 28.11.2000. He was only 17 years 5 months 18 days old and had not completed 18 years of age by that date. No objection having been raised to the report of the JJ Board, we accept the same and hold that the appellant No.1 was a ‘juvenile’ on the date of commission of the offence within the meaning of Section 2(k) of the JJ Act.

       Admittedly, plea of juvenility of the appellant No.1 was not raised either in course of trial or during pendency of this appeal before hand. Therefore, the contention raised by learned Standing Counsel, as to whether, such a plea can be raised at a belated stage during pendency of this appeal needs consideration.

       Explanation to Section 20 makes it abundantly clear that the question with regard to the determination of juvenility can be raised and adjudicated in all pending cases including trial, revision, appeal or any other criminal proceeding in respect of the JCL in any Court and such question, if raised, has to be determined, even if the juvenile ceases to be so on or before the date of commencement of this Act, i.e., 01.04.2001 and the provisions of the JJ Act shall apply as if the said provision was in force for all purposes and on material time when the alleged offence committed. Right of a JCL is protected under the provisions of the JJ Act. The right conferred in law on JCL cannot be brushed aside lightly. Thus, the right to raise question with regard to juvenility of the appellant can be raised at any time either during trial or during pendency of the appeal or revision or in any other proceeding pending in any Court of law in respect of a JCL.

       In view of the settled position of law, the stand taken by the learned Standing Counsel that the plea of juvenility cannot be raised at a belated stage during pendency of the appeal as it was not taken in course of trial, is inconsequential. Thus, we are of the view that the appellant No.1 was competent to raise this plea during pendency of the appeal and he was a JCL on the date of commission of the offence. (Paras 6 and 7)

       (ii) Indian Penal Code, 1860—Section 302/34—Juvenile Justice (Protection of Children) Act, 2000—Sections 14 and 15—Appellant convicted by trial court for offence of murder—Appeal—Appellant was juvenile on the date of incident—Whether trial in respect of appellant was vitiated being under taken by Session Court? No.

       Held: Admittedly, the appellant No.1 was tried in a Sessions Court and not by the JJ Board, as envisaged under Sections 14 and 15 of the JJ Act. It was because of the fact that the plea of juvenility was not raised in course of trial. Thus, issue as to whether the trial in respect of appellant No.1 would be vitiated being undertaken by the Sessions Court assumes importance.

       It is made clear that the case of juvenile has to be examined on merit. He simply cannot go unpunished. However, as the law stands, the punishment to be awarded to him or her should be left to the JJ Board constituted under the JJ Act.

       On a close reading of evidence of the witnesses, more particularly the evidence of PW-3, PW-7, PW-10 and PW-12 along with the postmortem report as well as the ballistic report and other ancillary documents, it is crystal clear that appellant No.1 had fired at the deceased, as a result of which the deceased fell down. PW-7, the doctor who conducted autopsy, also opined that all the injuries are ante-mortem in nature. The external injury Nos.1, 2, 3, 4, 5, 6 and 7 with corresponding internal injuries are consistent with shot gun injuries with a range of beyond the effect of fire and flame and within the range of gun powder. He also opined that all the injuries combined together are fatal in ordinary course of nature. The external injury No.1 with its corresponding internal injury, the external injury No.9 and its corresponding internal injury are individually fatal. The death was due to shock and haemorrhage.

       On a combined reading of the aforesaid materials, the active involvement of appellant No.1 in commission of the offence is proved beyond any reasonable doubt. Thus, we find no infirmity in the impugned judgment in convicting the appellant No.1 under Section 302/34 of IPC read with Section 25 of the Arms Act. (Paras 8, 11 and 12)

       Result: Appeal disposed of accordingly.