Prasadchandra Sen Prasad & Ors Vs. State of Bihar  INSC 805 (24
ANAND, K. VENKATASWAMI
24TH DAY OF DECEMBER, 1997 Present:
Dr.Justice A.S. Anand Hon'ble Mr.Justice K.Venkataswami Amrendra Sharan, Adv.
for the appellant in Crl.A.No. 1826/96 D.P.Mukherjee, Adv. for the appellant in
Crl.A.No.1827/96 V.N.Ganpule, Sr. Adv. Subodh Lalit and M.C.Dhingra, Advs.
him for the appellant in Crl.A.No.1 1828/96 H.L. Aggarwal, Sr.Adv. and B.B.Singh,
Adv. with him for the Respondent.
following Judgment of the Court was delivered:
APPEAL NO. 1827 OF 1996 AND CRIMINAL APPEAL NO. 1828 OF 1996 DR. A.S.ANAND.J
For an occurrence which took place at about 11.30 A.M.
29th September, 1978, in the Bazar in village Barauli, District Gopalganj, 11
accused persons were sent up to face their trial for offences under Section
302/149/148 IPC. The First Information Report in respect of the occurrence was
lodged on 29th
September, 1978 at police
station Barauli on the statement of Paras Nath Choubey (PW 6) brother of the
deceased, recorded at the hospital. The learned Additional Sessions Judge vide
judgment and order dated 22nd July, 1983 acquitted Mishri Bhaghat but convicted
the remaining 10 accused for offences under Sections 302/149/148 IPC. Each of
the 10 accused was sentenced to undergo imprisonment for life for an offence
under Section 302/149. No separate sentence was imposed on any one of the
accused for on offence under Section 148 IPC. Against their conviction and
sentence, all the 10 convicts filed three different set of appeals. The
Division Bench of the High Court Vide judgment and order dated 24th August, 1995 acquitted Sarwa Prasad (appellant)
No.5 in the High Court). The conviction and sentence of the remaining 9
convicts was, however, maintained. By Special leave 6 of the convicts have
filed three separate appeals in this Court. Three convicts have not filed any
appeals in this Court. Three conviction and sentence. All the three appeals are
being disposed of this common judgment since they arise out of the common
judgment and order of the courts below. Prabhunath Prasad has filed Criminal
Appeal No. 1827 of 1996 while Bhola Bhagat is the appellant in Criminal Appeal
No. 1826 of 1996, the remaining four convicts have filed Criminal Appeal No.
1828 of 1996.
to the prosecution case, on the fateful day Parasnath Choubey (PW6) along with
his brother Ram Naresh Choubey (deceased) went to the shop of Anish Haider
(PW5) for purchasing some cloth. After making the purchase, when they reached
near the shop of Jagat Prasad, PW6 saw Mishri Bhagat standing in a lane near
the medicine shop. He directed the remaining accused who were armed with
weapons like Dab, Bhala and Farsa to assault the complainant party.
the first informant PW6 managed to escape, the accused surrounded his brother
and assaulted him, as a result of which Ram Naresh Choubey fell down on the
ground. On raising an alarm a number of persons including Jita Manjhi (PW1), Bindeshwari
Prasad (PW3), Rajendra Choubey (PW4), Anish Haider (PW5), Shaukat Ali (PW8) and
Damodar Choudhary arrived at the scene of occurrence. After the appellants had
assaulted the deceased they fled towards the east. PW 6 came near his brother
but found him unconscious with bleeding injuries on different parts of his
body. He removed him to Barauli hospital on a cart. On intimation being sent
from the hospital to police station Barauli, Abdul Jalil (PW9) arrived at the
hospital and recorded the statement of PW 6 since the injured was in an
unconscious state. The injury report of Ram Naresh Choubey was prepared. On the
advice of the Doctor, the deceased was removed to Gopalganj hospital.
returned to the police station and drew up a formal FIR for offences under
Section 307 IPC etc. The investigation was taken in hand and site inspection
carried out. Blood stained earth was seized from the place of occurrence and
was subsequently sent for chemical examination. At about 10.00 P.M., the investigating officer received information that
the injured had succumbed to his injuries in Gopalganj hospital. The case was
thereupon converted to one under Section 302 IPC. An inquest was held at Gopalganj
hospital the same day. Thereafter, the post-mortem was conducted by Dr. Lakhi Chand
Prasad (PW7). As many as 17 antimortem injuries, all cut wounds, were found on
the body of the deceased. After close of the investigation the appellants were chargesheeted,
tried and convicted as already noticed.
trial all the witnesses except PW1, PW3, and PW4 turned hostile. The trial
court did not believe Jita Majhi PW1 but the High Court did not agree with the
opinion of the Trial Court and found him to be a reliable witness. PW3 Bindeshwari
Prasad was believed both by the Trial Court and the High Court. He made a clear
deposition regarding the part played by the appellants and the manner in which
the occurrence had taken place. PW4 Rajendra Choubey, brother of the deceased,
was believed by the Trail
Court but the High Court
did not place complete reliance upon his testimony.
though Anish Haider (PW5) had been declared hostile, both the trail Court as
well as the High Court scrutinised his testimony in Faradbeyan also. His
evidence connects the appellants with the crime. Similarly, Paras Nath Choubey
(PW6) even though had turned hostile has been believed by both the courts. No
reliance, however, has been placed on the testimony of Shaukat Ali (PW8) by
either of the two courts. The defence of alibi pleaded by Mansen Prasad and Dr.
Anil Kumar alias Tansen, appellants was not accepted after critically examining
the evidence of Mahendra Prasad (DW1) and Dr. M.M.Kolay (DW2) by the High
have heard learned counsel for the parties at length. We find that the view taken
by both the courts with regard to the involvement of the appellants in the
three appeals in the commission of crime of murder of Ram Naresh Choubey on the
fateful day has been established beyond every reasonable doubt. Both the courts
have carefully appreciated the evidence of witnesses and taken into account the
medical evidence and the established enemity between the parties and then
recorded on order of conviction. In our opinion the appreciation of evidence by
both the courts is proper and sound. We are not persuaded to take a view
different than the one taken by the courts below in so far as the involvement
of the appellants in the commission of crime is concerned. Their conviction is,
therefore, well merited.
is, however, one other aspect of the case which now engages our attention and
that pertains to appellant No.
Chandra Sen Prasad, appellant No. 3, Mansen Prasad and appellant No.10, Bhola Bhagat
- (The number as given to the appellants in the High court) In March, 1983,
more than for years after the occurrence, when the statements of these
appellants were recorded under Section 313 Cr.P.C. they gave their age as
Sen Prasad - 17 Years (Appellant No.2) Mansen Prasad (Appellant No.3) - 21
years Bhola Bhagat (Appellant No.10) - 18 Years.
Trial Court recorded that in its estimation the age of Appellant No. 2 was 22
years at that time while that of appellant No. 3, 21 years and appellant No.
10, 18 years.
Trial Court, however, did not give benefit to these three appellants of the
Bihar Children Act, 1970 In the High Court also an argument that Chandra Sen
Prasad, Mansen Prasad and Bhola Bhagat were children as defined in the Bihar
Children Act, 1970 on the date of the occurrence and their trial along with the
adult accused by the criminal court was not in accordance with law was raised
but was rejected inter alia with the following observation:
the alleged occurrence had taken place in September 1978 and the statements of
the appellants had been recorded in February and March, 1983 it was contended
that even by the estimate of the age of the appellants made by the court, all
the three appellants were below 18 years of age on the date of occurrence. It
appears that except for the age given by the appellants and the estimate of the
court at the time of their examination under section 313 of the Code of
Criminal Procedure, there was no other material in support of the appellant
claim that they were below 18 years of age." In coming to the above
conclusion, the High Court relied upon a judgment of this Court in the case of
State of Haryana vs. Balwant Singh 1993, Supp. (1) SCC 409 wherein it has been
observed that if the plea that the accused was a child had not been raised
before the committal court as well as before the Trial Court, the High Court
could not merely on the basis of the age recorded in the statement under
Section 313 Cr.P.C. conclude that the respondent was a `child' within the
meaning of the definition of the expression under the Act on the date of the occurrence,
in the absence of any other material to support that conclusion.
it appears that the approach of the High Court in dealing with the question of
age of the appellants and the denial of benefit to them of the provisions of
both the Acts was not proper. Technicalities were allowed to defeat the
benefits of a socially oriented legislation like the Bihar Children Act, 1982
and the Juvenile Justice Act, 1986. If the High Court had doubts about the
correctness of their age as given by the appellants and also as estimated by
the trial court, it ought to have ordered an enquiry to determine their ages.
It should not have brushed aside their plea without such an enquiry.
Bihar Children Act, 1982 was already in force when the Juvenile Justice Act, 1986
was extended to all the States w.e.f 2.10.1987. Section 32 of the Juvenile
Justice Act, 1986 provides:
and determination of age, -(1) Where it appears to a competent authority that a
person brought before it under any of the provisions of this Act (otherwise
than for the purpose of giving evidence) is a juvenile, the competent authority
shall make due inquiry as to the age of that person and for that purpose shall
take such evidence as may be necessary and shall record a finding whether the
person is a juvenile or not, stating his age as early as may be.
order of a competent authority shall be deemed to have become invalid merely by
any subsequent proof that the person in respect of whom the order has been made
is not a juvenile, and the age recorded by the competent authority to be the
age of the person so brought before it shall, for the purposes of this Act, be
deemed to be the true age of that person." This section casts an
obligation on the court to make due enquiry as to the age of the accused and if
necessary by taking evidence it self and record a finding whether the person is
a juvenile or not.
Ghosh vs. State of West Bengal, 1984 (Supp.) SCC 228, an argument was raised on
behalf of the appellant therein for the first time in the Supreme Court that on
the date of an offence the appellant was aged below 18 years and was,
therefore, a `child' within the meaning of the expression 'child' as contained
in the West Bengal children Act, 1959 and therefore the Court had no
jurisdiction to sentence him to suffer imprisonment, after holding a trial. In
that case, this Court framed in issue a trial. In that case, this Court framed
an issue as to what was the age of the appellant on the date of an offence for
which had been tried and convicted and remitted the issue to the learned
Sessions Judge, Nadia to return a finding on that question. The learned
Sessions Judge after hearing both the sides certified his findings that the
appellant Gopinath Ghosh was aged between 16-17 years on the date of the
offence. This Court then after referring to various provisions of the Act
opined that Section 24 of the Act takes away the jurisdiction of the Court to
impose a sentence of imprisonment, unless the case falls under the proviso and that
Section 25 of the Act forbids any trial of a juvenile delinquent and that only
an inquiry can be held in his case in accordance with the provisions of the
Code of Criminal Procedure, for the trial of a summons case. This Court noticed
that unfortunately the appellant had never questioned the jurisdiction of the
Sessions Court which tried him for the offence. Nor was any such plea raised in
the appeal against his conviction and sentence in the High Court. It was for
the first time that the contention was raised before the Supreme Court. The
Court the observed:
view of the underlying intendment and beneficial provisions of that Act read
with clause (f) of Article 39 of the Constitution which provides that the State
shall direct its policy towards securing that children are given opportunities
and facilities to develop in a healthy manner and in conditions of freedom and
dignity and that childhood and youth are protected against exploitation and
against moral and material abandonment, we consider it proper not to allow a
technical condition that this contention is being raised in this Court for the
first time to thwart the benefit of the provisions being extended to the
appellant. If he was otherwise entitled to it.
ours) and then went on to direct:
next question is : what should be the sequel to our decision? The appellant has
been in prison for some years. Bu neither his antecedents nor the background of
his family are before us. If is difficult for us to gauge how the juvenile
court would have dealt with him. Therefore, we direct that the appellant be
released on bail forthwith by the learned Additional Sessions Judge,
Nadia," and then proceed in accordance with law keeping in view the
provisions of the Act.
in the case of Bhoop Ram vs. State of U.P. ( 1989 ) 3 SCC 1, the only question
for consideration before a Bench of this Court was whether the appellant who
had been convicted and sentenced along with certain adult accused should have
been treated as a child within the meaning of Section 2(4) of the U.P. Children
Act, 1951 and sent to the approved school for detention therein till he
attained the age of 18 years instead of being sentenced to undergo imprisonment
in Jail. The Court after considering the material on the record opined that the
appellant therein could not have competed 16 years of age on the date when the
offence was committed and held that the appellant should have been dealt with
under the U.P. Children Act instead of being sentenced to imprisonment when he
was convicted by the Sessions Judge under various grounds. Since, the appellant
had by the time the appeal was heard by the Supreme Court reached the age of
more than 28 years, the court directed:- "Since the appellant is now aged
more than 28 years of age, there is no question of the appellant now being sent
to an approved school under the U.P. Children Act for being detained there. In
the a somewhat similar situation, this Court held in Jayendra v. State of U.P.
that where an accused had been wrongly sentenced to imprisonment instead of
being treated as a "Child" under Section 2(4) of the U.P. Children
Act and sent to an approved school and the accused had crossed the maximum age
of detention in a approved school viz.
years, the course to be followed is to sustain the conviction but however quash
the sentence imposed on the accused and direct his release forthwith.
Accordingly, in this case also, we sustain the conviction of, the appellant
under all the charges framed against him but however quash the sentence awarded
to him and direct his release forthwith." (Emphasis ours) A three Judge
bench of this Court in the case of Pradeep Kumar, vs. State of U.P. AIR 1994 SC 104, noticed the following
observations of the High Court regarding the age of the appellant:
the time of the occurrence Pradeep Kumar appellant, aged about 15 years, was
resident of Railway Colony, Naini, Krishan Kant and Jagdish appellants, aged
about 15 years and 14 years respectively, were residents of village Chaka P.S.Naini."
At the time of granting special leave, two appellants therein produced school
leaving certificate and horoscope respectively showing their ages as 15 years
and 13 years at the time of the commission of the offence and so far as third
appellant is concerned, this Court asked for his medical examination and on the
basis thereof concluded that he was also a child at the relevant time. The
Court then held:
is, thus, proved the satisfaction of the Court that on the date of occurrence,
the appellants had not completed 16 years of age and as such they should have
been dealt with under the U.P. Children Act instead of being sentenced to
imprisonment on conviction under Section 302/34 of the Act.
the appellants are now aged more than 30 years, there is no question of sending
them to and approved school under the U.P.
Act for detention.
while sustaining the conviction of the appellants under all the charges framed
against the, we quash the sentences awarded to them and direct their release
forthwith. The appeals are partly allowed in the above terms." (Emphasis
supplied) A Full Bench of the Patna High Court in the case of Krishna Bhagwan
vs. State of Bihar, AIR 1989 Patna 217, considered the question relating to the
determination of the age of the accused the belated raising of that plea and
opined that though the normal rule is that a pleas unless it goes to the very
root of the jurisdiction should not be allowed to be taken at the appellate
stage especially when it requires the investigation into a question of fact but
a plea that accused in question was a "child" within the meaning of
the Act can be entertained at the appellate stage also and should not be
overlook on technical grounds. After noticing the provisions of the Bihar
Children Act, 1982 and the Juvenile Justice Act, 1986, the Full Bench of the Patna
High Court opined, taking into consideration the aim and intention of the two
Acts, that the application of the provisions of the Acts should not be denied
to offender whereby the time the trial commenced or concluded the accused had
ceased to be a juvenile within the meaning of the Act. The Court then laid down
the procedure which should be flowed when a plea is raised to the effect that
the accused on the date of the offence was a child and held that inquiry into
that aspect should be conducted and on the basis of the evidence led at the
inquiry, the court should record a finding whether or not on the date of
commission of the offence, the accused was a `child' within the meaning of the
of the two Judge Bench of this Court in (1) SCC 409, which has been relied upon
by the High Court is clearly distinguishable. The bench in that case recorded:
neither before the committal court nor before the trial court, no plea was raised
on behalf of the respondent that he was a child and that he should not have
been committed by the Magistrate and thereafter tried by the session court and
that he ought to have been dealt with only by the court of Juveniles. When it
is not the case of the respondent that he was a child both before the committal
court as well as before the trial court, it is very surprising that the High
Court, based merely on the entry made in Section 313 statement mentioning the
age of the respondent as 17 has concluded that the respondent was a 'child'
within the definition of the Act on the date of the occurrence." In the
instant case, however, the plea had been raised both in the Trial Court as well
as in the High Court and both the Courts even considered the plea but denied
the benefit to the appellants for different reasons which do not bear scrutiny.
That apart, the earlier judgments of this Court reported in 1984 Suppl. SCC 228
(Supra) and 1989 (3) SCC 1 (Supra), were not even noticed the view expressed in
Gopinath Ghosh's case and Bhoop Ram's case (supra) receive support from the
three Judge Bench judgment in the case of Pradeep Kumar vs. State of U.P.
(supra), the appellants cannot be denied the benefit of the provisions of the
Act on the basis of balwant Singh's case (supra).
Correctness of the estimate of age as given by the trial court was neither
doubted nor questioned by the State either in the High Court or in this Court.
The parties have, therefore, accepted the correctness of the estimate of age of
the three appellants as given by the trial court.
these three appellants should not be denied the benefit of the provisions of a
socially progressive statute.
considered opinion, since in the plea had been raised in the High Court and
because the correctness of the estimate of their age has not been assailed, it
would be fair to assume that on the date of the offence, each one of the
appellants squarely fell within the definition of the expression 'child'. We
are under these circumstances reluctant to ignore and overlook the beneficial
provisions of the Acts on the technical ground that there is no other
supporting material to support the estimate of ages of the appellants as given
by the trial court, though the correctness of that estimate has not been put in
issue before any forum. Following the course adopted in Gopinath Ghosh, Bhoop
Ram and Pradeep Kumar's case (supra) while sustaining the conviction of the
appellants under all the charges quash the sentences awarded to them.
appellants Chandra Sen Prasad, Mansen Prasad and Bhola Bhagat, shall,
therefore, be released from custody forthwith, if not required in any other
case. Their appeals succeed to the extent indicated above and are partly
conviction and sentence of the remaining appellants is maintained and their
appeals are hereby dismissed.
parting with this Judgment, we would like to re- emphasise that when a plea is
raised on behalf of an accused that he was a "child" within the
meaning of the definition of the expression under the Act, it becomes
obligatory for the court, in case it entertains any doubt the age as claimed by
that accused, to hold in inquiry itself for determination of the question of
age of the accused or cause an enquiry to be held and seek a report regarding
the same, if necessary, by asking the parties to lead evidence in that regard.
Keeping in view the beneficial nature of the socially oriented legislation, it
is an obligation of the court where such a plea is raised to examine that plea
with care and it cannot fold its hands and without returning a positive finding
regarding the plea, deny the benefit of the provisions to an accused. The court
must hold an enquiry and return a finding regarding the age, one way or the
other. We expect the High Court and subordinate courts to deal with such cases
with more sensitivity, as otherwise the object of the Acts would be frustrated
and the effort of the Legislature to reform the delinquent child and reclaim
him as a useful member of the society would be frustrated. The High Courts may
issue administrative directions to the subordinate courts that whenever such a
plea is raised before them and they entertain any reasonable doubt about the
correctness of the plea, they must a rule, conduct an inquiry by giving
opportunity t the parties to establish their respective claims and return a
finding regarding the age of the concerned accused and then deal with the case
in the manner provided by law.