- (1.) One of the issues raised by Mr Pradip Ghosh, the learned Senior Counsel for the appellant is that Abuzar Hossain alias Gulam Hossain was a juvenile on the date of the incident and as such he could not have been tried in the normal criminal court. He has submitted that as per his statement recorded under Section 313 of the Code of Criminal Procedure on 4-3-2003 he was 19 years of age and that the point of his juvenility had been raised even in the grounds of appeal in the High Court as well as in the present petition as the incident had happened on 11-2-2001. It is true, as contended by Mr Ghosh, that this plea had been taken but we find from a perusal of the evidence as also the judgments of the trial court and the High Court, Sayed Darain v. State ofW.B., 2006 2 CalLT 547 that this matter does not appear to have been pressed at any stage and no evidence whatsoever had been led by the defence to prove the age of the appellant, Abuzar Hossain.
(2.) Faced with this situation, Mr Ghosh has relied upon Gopinath Ghosh v. State of W.B., 1984 SCC(Cri) 478 to argue that notwithstanding the fact that the plea had not been raised, an obligation nevertheless lay on the Court to go into this matter and to determine the age of the appellant. Mr Ghosh, in particular, had relied upon the observations made in para 10 of the judgment which reads as under: (SCCp. 231) "10. Unfortunately, in this case, appellant Gopinath Ghosh never questioned the jurisdiction of the Sessions Court which tried him for the offence of murder. Even the appellant had given his age as 20 years when questioned by the learned Additional Sessions Judge. Neither the appellant nor his learned counsel appearing before the learned Additional Sessions Judge as well as at the hearing of his appeal in the High Court ever questioned the jurisdiction of the trial court to hold the trial of the appellant, nor was it ever contended that he was a juvenile delinquent within the meaning of the Act and therefore, the Court had no jurisdiction to try him, as well as the Court had no jurisdiction to sentence him to suffer imprisonment for life. It was for the first time that this contention was raised before this Court. However, in view of the underlying intendment and beneficial provisions of the 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 contention 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." Mr Ghosh has also relied on the observations made by a Bench of this Court in Hari Ram v. State of Rajasthan, 2009 13 SCC 211 to contend that after the amendment made in the year 2001 in Sections 2(k) and 2(1) of the Juvenile Justice (Care and Protection of Children) Act, 2000, a "juvenile" has been described as a person who had not yet completed 18 years of age and a proviso had also been added to Section 7-A that the plea of juvenility could be raised before any court at any stage even after the final disposal of the case and that the Court was bound to examine the matter.
(3.) Mr Tara Chandra Sharma, the learned counsel appearing for the respondent State, has however, relied upon certain observations made by another Bench of this Court in Akbar Sheikh v. State of W.B, 2009 7 SCC 415 and in particular to the observations which read as under: (SCC pp. 430-31, para 45) "45. We are also unable to accept the submission of Mr Rauf Rahim that Kabir was a juvenile on the date of occurrence. No such question had ever been raised. Even where a similar question was raised by five other accused viz. Jahangir, Motahar, Mosi, Chosi and Habal, no such plea was raised even before the High Court. Reliance inter alia has been placed on the statement of Kabir under Section 313 of the Code of Criminal Procedure wherein he stated his age to be 33 years in 2001. Such a statement, in our opinion, is not decisive. Reliance has also been placed on a voters' list. The said voters' list had been prepared long after the incident occurred. The same is again not decisive.";