- (1.) K. S. Rakhra, J. The appellants who are the real brothers, have been held guilty and sentenced to rigorous imprisonment for a term of 10 years and a fine of Rs. 10,000/- each for having been guilty of culpable homicide. The appellant Asif has been convicted under Section 304-II IPC and Mohd. Arif has been sentenced under Section 304-II read with Section 34 IPC.
(2.) ACCORDING to prosecution, on 19-8-2000, at about 10. 00 a. m. in village Rasoolpur within the circle of P. S. Satrikh District Barabanki, two brother Anil Kumar and Sunil Kumar were preparing mud for repair of their house. Their uncle Moti Lal was also assisting them. The appellants happened to pass from there. Some splash of mud stained the clothes of appellant Asif. This gave cause for altercation and exchange of abuses, which culminated into physical assault by the appellants on Sunil. In this scuffle, Sunil fell to the ground. The appellant Asif found a hoe of the plough lying there. He picked it up and assaulted Sunil with the hoe of the plough on his head. Sunil received injury and fell down. The incident was witnesses by several persons who had gathered. The appellants then ran away. The victim was taken to the hospital. An FIR was lodged by Moti Lal on the same day which was registered under Section 307 IPC but later on, since Sunil died on account of injuries received by him, the case was converted under Section 302 IPC. After considering the evidence adduced by the prosecution, the trial Court found that there was no previous enmity of motive for commission of murder nor was there any prior preparation by any accused persons for making an assault. He also took notice of the fact that instead of assaulting from the side of the head of the hoe of the plough, the appellant Asif had given blow of the handle of the hoe of the plough. In these circumstances, the trial Court found that it was a case not falling under Section 302 IPC but was covered by Section 304-II IPC. He convicted the other accused Mohd Asif under Section 304- II IPC read with Section 34 IPC with the observation that both the accused together had fallen the victim to the ground and were beating him when Asif attacked with the handle of the hoe of the plough. In view of the circumstances mentioned above, I agree with the learned Counsel for the appellants that so far as the appellant Mohd. Arif is concerned, he could not have been held guilty for committing offence punishable under Section 304-II IPC read with Section 34 IPC. It is not a case that there was any previous enmity of previous preparation of previous concert for commission of this crime. The incident took place all of sudden and that too, on a petty matter when the mud splash accidentally, stained the clothes of accused Asif. The weapon i. e. , the hoe of the plough was also accidentally found laying there which was picked up by Asif. There was no exhortation by Arif nor Arif gave any blow with the said hoe of the plough. In these circumstances, the appellant Arif could be held guilty and convicted only for offence under Section 323 IPC and could not have been held guilty under Section 304-II IPC read with Section 34, IPC.
(3.) THE conviction of Mohd. Asif under Section 304-II read with Section 34 IPC is, therefore, set aside and he is held guilty and is convicted under Section 323 IPC and is sentenced to one year imprisonment only. Since he has already undergone the imprisonment for more than a year, he will be released forthwith. So far as Mohd. Asif is concerned, the argument of the learned Counsel for the appellant is that he was a juvenile within the provisions of Juvenile Justice (Care and Protection of Children) Act, 2000 (Act No. 56 of 2000) and was also a juvenile within the meaning of Juvenile Justice Act, 1986 (Act No. 53 of 1986) at the time of commission of the offence. Section 20 of the Act No. 56 of 2000 reads as follows : "20. Special provision in respect of pending cases.-Notwithstanding anything contained in this Act, all proceedings in respect of a juvenile pending in any Court in any area on the date on which this Act comes into force in that area, shall be continued in that Court as if this Act had not been passed and if the Court finds that the juvenile has committed an offence, it shall record such finding and instead of passing any sentence in respect of the juvenile, forward the juvenile to the Board which shall pass orders in respect of that juvenile in accordance with the provisions of this Act as if it had been satisfied on inquiry under this Act that a juvenile has committed the offence. " This Act came into force on 1-4-2001 that means, on 19-8-2000, when the incident took place, the Act No. 53 of 1986 was in force. By virtue of Section 20 of the Act No. 56 of 2000, all proceedings in respect of the juvenile pending in any Court on the date on which this Act came into force shall have to be continued as if the Act No. 56 of 2000 had not been passed. It is only if the Court finds that the juvenile in conflict with law has committed an offence and a finding is recorded to that effect, the Court instead of passing any sentence has to forward the juvenile to the Board for passing such order in accordance with the provisions of the Act may be deemed proper. The argument of the learned Counsel for the appellants is that the appellant Mohd. Arif was below the age of 16 years at the time of commission of offence but above the age of 18 years when the trail was concluded and, therefore, the trial Court could not have passed any sentence on appellant Arif. The argument of the learned Counsel for the appellants is that in such a situation when a sentence had been passed and Mohd. Arif has also ceased to be juvenile, the appropriate course is to release him as he has already undergone detention of 6 years against a sentence of 10 years imprisonment passed on him.;