Back
2003 Supreme(Raj) 355
Rajasthan High Court
Honble D.N. JOSHI, J.
Suresh Dutt - Appellant
Versus
State of Rajasthan - Respondents
S.B. Cri. Revision Petition No. 141 of 1992
Decided On : April 24, 2003
P.N. Mohnani, for Petitioner K.S. Bishnoi, Public Prosecutor, for State
Headnote:(a) Penal Code, Secs. 302 and 264 – Circumstantial evidence – Murder of a student by his collegue of 15 years – Trial Court convicted and ordered to detain for five years in juvenile Reformatory – Appellate court upheld the conviction – Revision – Held – Prosecution established beyond reasonable doubt on the principles of circumstantial evidence of last seen, recovery of dead body at the instance of the accused – Testimony of the witnesses is corroborated by medical evidence – Conviction being well merited requires no interference. (Para 7)(b) Juvenile Justice Act, 1986, Sec. 37; Rajasthan Children Act, 1970, Sec. 22(ii) – Competence of the Addl. Sessions Judge to hear and try appeal u/S. 37 of the Act of 1986 – Held – In view of Sec. 32 read with Sec. 37 of the Act, appeal could be preferred to the Court of Sessions – As per Sec. 9 Cr.P.C., the Court of Sessions include the Court of Addl. Sessions Judge also – Before final disposal of the case by children Court, the provisions of Children Act were applicable – The provisions of latter Act were made applicable on 2nd Oct. 1987. (Para 25)(c) Juvenile Justice Act, 1986, Sec. 21(1)(d) – Sending juvenile to the juvenile Reformatory after attaining the age of 18 years – Justification in view of Sec. 21(1)(d) – Held – The crucial date for determining the question whether a person is juvenile or not, is the date when offence was committed and not when the accused first appears before the Court in enquiry proceedings – Appellant is presently 36 years of age – No question of sending him now to an approved School under the Act for detention – Sustaining conviction, order of sending him to approved Reformatory School quashed.
It Can be said that appeal was preferred by the revisionist-petitioner u/Sec. 37 of the Act. As per Section 37, any person aggrieved by any order made by a competent authority under this Act may within 30 days from the date of such order, prefer an appeal to the Court of Session. The appeal was preferred by the revisionist-petitioner to the Court of Sessions and it was transferred by the Sessions Judge, Jodhpur for disposal according to law to the Court of Additional Sessions Judge, Jodhpur. Before the final disposal of the case by the Children Court (thereafter named as Juvenile Court), the provisions of Children Act were applicable and the provisions of the later Act were made applicable on 2.10.1987. In view of Section 32 read with Section 37 of the Act, the appeal could be and was preferred to the Court of Sessions. As per Section 9 of the Code of Criminal Procedure, the Court of Sessions includes the Court of Additional Sessions Judge also, which was situated within Jodhpur and under the control of Court of Sessions. In the considered opinion of the Court, after receipt of the case on transfer from the Court of Sessions, the learned Additional Sessions Judge, Jodhpur (Special Judge, E.C. Act) was competent to hear ad decide the appeal. (Para 25)
Crucial date for determining the question whether a person is juvenile or not is the date when offence was committed and not when the accused first appears before the Court in inquiry proceedings. (Para 36)
(2). As per finding of the Juvenile Court, the accused was of 15 years, 3 months and 10 days of age on the date of occurrence i.e. 4.112.1981. As per certificate of School, the date of birth of the revisionist-petitioner was 24.8.1966 and the appeal u/Sec. 37 of the Act was preferred before the Court of Sessions on 30.05.1989 against the above order, who transferred the same to the Court of Additional Sessions Judge, Jodhpur (Special Judge, E.C. Act), which was received in the later Court on 22.2.1990. On 12.05.1992, the learned Additional Sessions Judge reduced the duration of detention from 5 years to 3 years in Judicial Reformatory, Udaipur u/Sec. 22(i) of the Act. Against this judgment and appeal by the learned Additional Sessions Judge, this revision has been filed on 17.05.1992 u/Sec. 38 of the Act.
(3). The facts giving rise to the present case are that on an information by Shyamlal, a F.I.R. was registered against the revisionist-petitioner for the alleged murder of Vinod Kumar on 4.12.1981, who had gone with him and was not seen alive thereafter. After usual investigation, challan was submitted against the accused on 11.1.1982. The learned Juvenile Court relying on the evidence of the last seen and recovery of the dead body of the deceased at the instance of the accused, convicted the revisionist-petitioner as aforesaid. The learned Juvenile Court also relied on the evidence of Identification Parade of the articles held during investigation by the then Munsif and Judicial Magistrate PW. 16 Mr. Prashant Kumar, PW.12 Dr. P.D. Purohit, who conducted the post mortem of the deceased found that the cause of the death was strangulation with help of cord. According to the prosecution, the deceased was burnt after murder.
(4). I have heard learned counsel for the revisionist-petitioner as well as the learned Public Prosecutor.
(5). Learned counsel for the petitioner argued that the prosecution has not been able to prove the offences alleged to have been committed by the accused and challenged the finding of conviction recorded by the Juvenile Court and upheld by the Court of Sessions. Secondly, the learned counsel argued that the Court of Additional Sessions Judge was not competent to try and hear the appeal u/Sec. 37 of the Act and the conviction is vitiated on this sole ground. Thirdly, he has argued that as the revisionist- petitioner has now attained the age of 18 years, he cannot be sent to Juvenile Reformatory in view of the provisions of Section 21(1)(d) of the Act.
(6). The learned Public Prosecutor controverted the arguments advanced by the learned counsel for the revisionist-petitioner and supported the findings given by the learned Juvenile Court, which were upheld by the Appellate Court on facts as well as on the point of law.
(7). The case of the accused-petitioner is based on circumstantial evidence. The Apex Court in Bodh Raj @ Bodha & Ors. vs. State of Jammu & Kashmir, (1), has held as under :-
``For a crime to be proved, it is not necessary that the crime must be seen to have been committed and must, in all circumstances be proved by direct ocular evidence by examining before the Court those persons who had seen its commission. The offence can be proved by circumstantial evidence also. The principal fact or factum means of certain probans, that is, the evidentiary facts. To put it differently circumstantial evidence is not direct to the point is issue but consists of evidence of various other facts which are so closely associ
