1980 Supreme(MP) 314

G. L. Oza and S. S. Sharma, JJ.
Lalsingh v. State of M. P.
Cr. A. No. 974 of 1975; (J) Decided on 30-9-1980.

Headnote:(1) Criminal Trial -- trial vitiated being against law -- normal course open -- what is -- retrial after lapse of 6 years -- whether proper.

        (2) Penal Code, 1860 -- S. 302 -- offence of murder -- committed by child of 13 years of age -- whether may be sentenced to imprisonment for life -- proper course open for trial -- what is.

        (3) Bal Adhiniyam, 1970 -- S. 22 -- accused a child of 13 years charged with offence of murder -- whether may be sent to prison.

        The learned counsel appearing for the appellant contended that m this case the offence was committed on 13-9-74 when the age of the present appellant was only 13 years and it appears that it was because of this that the appellant was committed to the Court of Sessions by the Juvenile Court, Jabalpur According to the learned counsel the M. P. Bal Adhiniyam, 1970 was made applicable to the Sagar district by notification dated 17-2-70 as by this notification it was extended to Jabalpur Division and at that time Sagar district was a part of Jabalpur Division and, therefore, the appellant, could not have been tried before the Sessions Court and the conviction of the appellant and the sentence awarded could not be maintained He placed reliance on a decision reported in Rohtas v. State of Haryana (AIR 1979 Supreme Court 1839). It was also contended that under section 22 of the Madhya Pradesh Bal Adhiniyam, a sentence of imprisonment could not have been awarded to hi m and, therefore, the sentence awarded to the appellant could not be maintained. It was further contended by the learned counsel that although in view of the decision of their Lordships of the Supreme Court the trial conducted of the appellant is not in accordance with the M.P. Bal Adhiniyam and deserves to be quashed but in the circumstances of the case, as the prosecutions own case appears to be that the witness Dwarka (PW 4), the deceased and the appellant all were young boys and it was just in their children joke and quarrel that a blow had been inflicted on the head of the deceased by the appellant and at the time of commission of offence, he was only 13 years of age and as sufficient time has elapsed as the incident took place on 13-9-74 and that the appellant had been in custody from 14-9-75 to 30-4-76, no useful purpose would de served by sending the case back for trial afresh Under these circumstances, the conviction be set aside.

        Held : The evidence of Drawka (P.W. 4) indicates that all these boys were in the Jungle and one snatched the lalhi from the other and the other snatched a towel. It was just, therefore, a childish affair going on and in that it appears the appellant gave a blow with an axe which fell on the head of the deceased. In view of the decision of their lordships of the Supreme Court reported in Rohtas v. Stale of Haryana (supra) the trial of the present appellant before the Sessions Court could not be held to be legal. He ought to have been tried by a Juvenile Court as provided in M. P. Bal Adhiniyam. Apparently, therefore, the trial held by the Sessions Court is not in accordance with law. It is also clear that in view of section 22 of the M. P. Bal Adhiniyam, the appellant could not be sent to prison. The conviction of the appellant therefore, could not be maintained.

        As the trial itself is vitiated, normally the matter has to he sent back for a fresh trial in accordance With the procedure provided under the M. P. Bal Adhiniyam. But in the circumstances of this case, as stated above and the fact that the incident took place in 1974 and that the appellant bad also been in jail form 14-9-1975 to 30-4-1976, no useful purpose would be served by sending him back for trial before a Juvenile Court under this Act after a lapse of 6 years. Under these circumstances, in our opinion, the appellant deserves to be let off. AIR 1979 SC 1839, followed. Appeal allowed.