JUDGMENT :

Manish Kumar Nigam, J.

Ref :- Order on Criminal Misc. Application No.91499 of 2016

1. Heard learned Counsel for the appellant no.3, Suresh @ Suttur and learned A.G.A. for the State.

2. Present criminal appeal has been filed by appellant no.1-Ram Nayan, appellant no.2-Chetman, appellant no.3-Suresh @ Suttur, appellant no.4-Ram Surat and appellant no.5-Raghav Sharan against the judgment and order dated 30.9.2015 passed by Addl. Sessions Judge, Court no.2, Maharajganj in S.T. No.31 of 1998 (State Vs. Suresh @ Suttur & others) connected with S.T. No.40 of 2000 (State Vs. Raghav Sharan), whereby the appellants have been convicted and sentenced for life imprisonment under Section 302/149, for imprisonment of two years under Section 147 IPC and for imprisonment of three years under Section 201 I.P.C. Fine has also been imposed on the appellants.

3. A First Information Report was lodged in Case Crime No.63 of 1993 under Section 147, 302, 201 I.P.C., P.S.-Kotwali, District-Maharajganj against the Suresh @ Suttur, Chetman s/o Deep Narain, Ram Surat s/o Chetman, Ram Nayan s/o Chauthi Kewat, Raghav Sharan S/o Chetman. As per the prosecution story on 5.3.1993 accused Suresh @ Suttur Yadav had taken Udai Raj the son of first informant from his house and since then Udai Raj had not come back. Missing report was lodged with the police. Suresh @ Suttur Yadav was arrested and on his pointing out dead body of the deceased Udai Raj was recovered by the Police. After investigation charge-sheet was submitted by Police against appellants. However, no charge-sheet was submitted against Raghav Sharan. Initially the accused Raghav Sharan could not be arrested by Police as he was absconding after the incident. Later on when accused Raghav Sharan was arrested, a supplementary charge-sheet was filed against Raghav Sharan by the Police. Learned Magistrate thereafter vide orders dated 11.8.1998 and 2.8.2000 committed the case to trial before the Sessions Court. Sessions Trial No.31 of 1998 (State Vs. Suresh @ Suttur and others) and S.T. No.40 of 2000 (State Vs. Raghav Sharan) were tried together by the sessions court and all the accused-appellants were convicted and sentenced by the sessions Judge vide judgment and order dated 30.9.2015.

4. During the pendency of the present appeal, an application being Application No.91499 of 2016 was filed by appellant no.3 Suresh @ Suttur praying that an inquiry in respect of the juvenility of the appellant no.3, who was a minor on the alleged date of crime i.e. 05.03.1993 be undergone and necessary orders be passed in this regard. The claim of the juvenility was made on the ground that the appellant no.3, Suresh @ Suttur was admitted in Class 2nd on 05.09.1983 and has passed Class-5th on 25.4.1987. The date of birth mentioned in his mark-sheet was 18.3.1977 which was issued by the Principal, Ram Aadhar Junior High School Gaushala, Maharajganj. Applicant/appellant no.3 relied upon the transfer certificate issued by the institution and the other documents mentioned in the affidavit filed in support of the application for consideration of his juvenility. This Court vide order dated 10.10.2017 directed the District Judge, Maharajganj to get an inquiry conducted from the concerned Juvenile Justice Board regarding the plea of juvenility made by the appellant no.3 Suresh @ Suttur and asked him to submit his report within two months from the date of order. On 08.12.2017, a report was submitted by the Juvenile Justice Board, Maharajganj to the effect that on the date of incident i.e. 5.3.1993, appellant no.3, Suresh @ Suttur was 15 years 11 months and 17 days old. The aforesaid report along with the documents considered by the Juvenile Justice Board, Maharajganj were placed on record in the present appeal. By order dated 31.10.2019, learned A.G.A. was granted time to file counter affidavit to the report of Juvenile Justice Board, Maharajganj within four weeks’. On 02.11.2020, an affidavit was filed by learned A.G.A. mention