JUDGMENT :

ANUBHA RAWAT CHOUDHARY, J.

1. Heard Mr. Atanu Banerjee, learned counsel appearing on behalf of the petitioner.

2. Heard Ms. Mahua Palit, learned counsel appearing on behalf of the opposite party-State of Jharkhand.

3. This Criminal Revision application is directed against the judgment dated 20.05.2014 passed in Criminal Appeal No. 90 of 2014 by the learned Additional Sessions Judge-I, Bermo at Tenughat, whereby the appeal preferred on behalf of the present petitioner against the judgment of conviction and order of sentence including imposition of fine dated 23.09.2004 has been dismissed with a direction upon the petitioner to pay fine amount within ten days, failing which the petitioner was to surrender before the court below within ten days from the date of order to serve out the sentence of one month Simple Imprisonment.

The petitioner was held to be in conflict with law and judgment of conviction was passed by the learned Additional Chief Judicial Magistrate, Bermo at Tenughat in G.R. No. 911 of 2002 arising out of Mahuwatand P.S. Case No. 40 of 2002, T.R. No. 201 of 2004 holding the petitioner in conflict with law and convicting the petitioner under Section 417 of the Indian Penal Code and consequently directing for executing bond of Rs. 20,000/- by the petitioner and his guardian with two sureties of like amount each for a period of three years on admonition and also pay fine of Rs. 5,000/- within a month and the learned court found that the petitioner was 20 years of age and earned money. The aforesaid judgment dated 23.09.2004 has also been challenged by the petitioner.

Arguments on behalf of the petitioner

4. The learned counsel for the petitioner submits that mainly two points are involved in this case. Firstly, the petitioner has been convicted under Section 417 of Indian Penal Code, although the petitioner was charged under Sections 376/316 of IPC and accordingly, the gist of accusation for offence under Sections 415/417 of IPC was never explained to the petitioner. He submits that this aspect of the matter goes to the root of the case and in absence of explaining the gist of accusation to the petitioner under Sections 415/417 of IPC, the petitioner could not have been convicted under the said section. The learned counsel has also referred to Section 222 of Code of Criminal Procedure.

Secondly, by the impugned order, a fine amount of Rs. 5,000/- has been imposed by recording that the petitioner was earning, but it has been stated in para-5 of the memo of revision that the petitioner was remanded on 23.10.2002 and he was under custody till the date of the judgment i.e. on 23.09.2004 and as such the petitioner could not have been said to be an earning person. The learned counsel for the petitioner submits that in this view of the matter, the punishment, so far as it relates to imposition of fine, is perverse and is fit to be set-aside.

The learned counsel further submits that so far as the other part of the punishment is concerned, the same has already been served by the petitioner as has been recorded by the learned lower appellate court. He refers to Section 15 of Juvenile Justice Act.

5. The learned counsel also refers to Section 19 of the Juvenile Justice Act to submit that an observation may be made that the petitioner will not be disqualified in future pursuant to the impugned judgment.

Arguments on behalf of the opposite party-State

6. The learned counsel appearing on behalf of the opposite party, on the other hand, vehemently opposes the prayer and submits that the evidences which are mentioned in the judgments passed by the learned courts below indicate that in fact a case under Section 376 of IPC was made out, but still the petitioner was convicted only under Section 417 of IPC. She submits that the petitioner does not deserve any sympathetic view of this court. However, she does not dispute that the judgment passed by the first court was never challenged by the State or by the victim.

Findings of this Court

7.