R.K.Rastogi, J. - (1.) THIS is an appeal against the judgment and order dated 10.8.1982, passed by Sri Pramod Kumar Sarin, then learned 1st Addl. Sessions Judge , Etawah in S.T. No. 150 of 1981, State v. Ashok Kumar convicting the accused-appellant under Section 302, I.P.C. and sentencing him to life imprisonment.
(2.) THE facts relevant for disposal of this appeal are that on 24.12.1980 Ram Bharose Lal lodged a F.I.R. at the Police Station Dibiyapur district Etawah at 5.15 p.m. with these allegations that on the aforesaid date his son Satish Kumar alias Harish had gone to fetch his niece Suman who was a student of High School . THE school closed at about 3.15 p.m. and Suman came out of the school. She was being teased by some boys who were also studying in the same school. Accused Ashok Kumar had also joined them. Satish Kumar prohibited them from doing so, then Ashok gave a knife blow to Satish. Satish tried to protect himself by catching him, and he received injury upon his hand but he could not snatch that knife. In the meantime Ashok gave a strong knife blow upon his stomach and the entire blade of the knife entered the stomach and got entangled there. THEreafter Girish who was also a friend of Ashok pulled out the knife. This incident was witnessed by Hridai Narayan, Kishori Lal, Raghunandan and Mewa Lal, Suman etc. Suman narrated this incident to the informant Ram Bharose Lal and she also told that Kishori Lal etc. had taken Satish Kumar to the hospital. THEn he went to the hospital where Harish narrated the entire incident to him before Dr. Subhash. THE Doctor after providing first aid to him referred him for further treatment to the Government Hospital but when Harish was being taken to the hospital he died in the way at about 4.30 p.m. THEn Ram Bharose Lal went to the police station to lodge the F.I.R. On the basis of above report, the police registered a case against the accused under Section 302, I.P.C. The accused was charged under Section 302, I.P.C. He pleaded not guilty and claimed trial. The trial court after taking evidence and after hearing the parties came to the conclusion that the charge under Section 302, I.P.C. was sufficiently proved against the accused . He, therefore, convicted the accused-appellant under Section 302, I.P.C. providing an opportunity of being heard on the point of sentence. Then the accused took a plea that he was child on the date of the incident and so he should be given benefit of the Children Act. Then the learned Judge took evidence of both the parties on the point of age of the accused-appellant. The prosecution produced evidence to this effect that the date of birth of the accused-appellant was 7.7.1964 as entered in the school record as well as in his High School certificate. On the other hand the accused produced evidence to this effect that his date of birth was 1.6.1965. After taking evidence of both the parties the trial court was of the view that the evidence produced by the prosecution that the date of birth of the accused was 7.7.64 was more reliable and so he held that the date of birth of the accused was 7.7.64. He further held that according to this date of birth, the accused had completed 16 years of age on 7.7.80, and since the incident had taken place on 24.12.80, he could not be treated to be a child on that date under the provision of the Children Act because under the said Act, a boy upto the age of 16 years only can be deemed to be a child. He, therefore, held that since the provisions of Children Act were not applicable to the case of the appellant as he had ceased to be a juvenile on the date of the incident, he was liable to be sentenced under Section 302, I.P.C. He, therefore, imposed life imprisonment upon the accused-appellant. Being aggrieved by the judgment and order of the Court below, the accused-appellant has filed this appeal.
(3.) WHEN this appeal was taken up for hearing of argument on 13.8.08 Mr. P. N. Misra, learned counsel for the appellant made only one submission before us. He submitted that even if the date 7.7.64 as held by the trial court be taken to be the true date of birth of the appellant, the appellant is entitled to the benefit of the provision of the Juvenile Justice (Care and Protection of Children) Act , 2000 (hereinafter referred to as Juvenile Justice Act, 2000). In this connection he referred to Section 20 of the above Act which has been amended by Act No. 33 of 2006 and which now runs as under : "1. Special provision in respect of pending cases.-Notwith-standing 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 : Provided that the Board may, for any adequate and special reason to be mentioned in the order, review the case and pass appropriate order in the interest of such juvenile. Explanation.-In all pending cases including trial, revision, appeal or any other criminal proceedings in respect of a juvenile in conflict with law, in any Court, the determination of juvenility of such a juvenile shall be in terms of Clause (1) of Section 2, even if the juvenile ceases to be so on or before the date of commencement of this Act and the provisions of this Act shall apply as if the said provisions had been in force, for all purposes and at all material times when the alleged offence was committed." It may be mentioned that in the Juvenile Justice Act as passed in the year 2000 the first para only of Section 20 was in the statute book. The second and third paras containing the proviso and the Explanation were added by the amending Act No. 33 of 2006. This amending Act received assent of His Excellency the President of India on 22.8.2006 and it was published in the Gazette of India, Ext. Part II, S. 1, dated 23.8.2006.;