- (1.) Death Reference No. 4 of 2011, the Criminal Appeal No. 498 of 2011 and Criminal Appeal No. 499 of 2011, all three, are arising out of a judgment and order passed on August 26, 2011 in Sessions Trial No. 1(9) of 2003 by the learned Additional Sessions Judge, 3rd Court, Bankura. The learned Trial Court by the aforesaid judgment and order convicted the appellants, in C.R.A. No. 498 of 2011, Sanjiv @ Sanjit Pan and Sujit Pan @ Putka under section 498A/302/34 of the Indian Penal Code and sentenced them to death for their conviction under section 302/34 of the Indian Penal Code but no separate sentence was imposed for their conviction under section 498A of the Indian Penal Code. Whereas the appellants, in C.R.A. No. 499 of 2011, Kalipada Pan, Bhakti Bala Pan and Rupali Pan were convicted under section 498A/34 of the Indian Penal Code and sentenced to suffer rigorous imprisonment for 2 years and to pay fine of Rs. 2,000/-, in default, to suffer simple imprisonment for 6 months. However, all the three appellants were acquitted from the charge under section 302/34 IPC and against the said order of acquittal no appeal has been preferred. In course of hearing of the aforesaid appeals on behalf of the appellant No. 2 Sujit Pan @ Putka a plea of juvenility was raised and it was claimed that on the date of the alleged incident he was below the age of 18 years. When this Court by an order passed on March 26, 2012 remanded the matter back to the Trial Court with a direction to hold an enquiry in terms of section 7A of the Juvenile Justice (Care and Protection of Children) Act, 2000 read with Rule 12 framed thereunder and to determine the age of the said appellant on the date of the alleged incident. Pursuant to the aforesaid order the Trial Court held an enquiry for determining the age of the said appellant and in absence of any certificate of birth he was referred for ossification test. In the ossification test held on March 29, 2012 he was found aged about 22 years and 5 months and accordingly the Trial Court came to the conclusion that on the date of the alleged incident that is on March 13, 2001 he was aged about 11 years and 6 months and consequently a juvenile in conflict with law. Such " finding of the Trial Court has not been disputed from the side of the State and the same was conceded. We have gone through the evidence and other materials on record on the basis of which the Trial Court came to the above findings and do not find any infirmity therein and accordingly the same is accepted.
(2.) Now, having regard to the fact on the date of the commission of the offence the accused Sujit Pan @ Putka was a juvenile in conflict with law according to the mandate of Juvenile Justice (Care and Protection of Children) Act, 2000 he cannot be proceeded with in terms of the provisions of the Code of Criminal Procedure, thus his trial on a charge of commission of offences punishable under Indian Penal Code and his consequential conviction and sentence is illegal and without jurisdiction. Thus the order of conviction and sentence passed against the appellant Sujit Pan @ Putka is set aside. He shall forthwith be released from the custody. It appears that the appellant Sujit Pan @ Putka during investigation was in custody for 3 months and after his conviction and till date for about 8 months. We direct after his release from custody within a week he shall be forwarded to the concerned Juvenile Justices Board, constituted for the District of Bankura and the Board shall hold necessary enquiry in terms of the provisions of section 14 of the Juvenile Justice (Care and Protection of Children) Act, 2000 and pass necessary order in accordance with the said Act.
(3.) Now coming to the case of other appellants, we find the prosecution case against them runs as follows: China @ Dipali the youngest sister of the de facto-complainant Asoke Kumar Hazra was married with the convict Sanjiv @ Sanjit Pan, the second son of the convict Kalipada Pan. The other convict, viz. Sujit Pan @ Putka was the younger brother of Sanjiv @ Sanjit Pan and other two convicts, viz. Bhakti Bala Pan and Rupali Pan are his mother and sister-in-law. At the time of marriage a cash money of rupees seventy-eight thousand, jewelleries and various household articles were given as dowry. A sum of Rs. 13,500/- was remain unpaid. Nineteen days before the alleged incident Dipali gave birth to a female child and on March 10, 2001 at about 10.30 p.m. one relation of the de facto-complainant informed him that his sister and her newly born baby was taken to Taldangra Hospital. However, de facto-complainant having reached there found that they had already been removed to Gobindanagar Hospital. On the next day he had been to the Gobindanagar Hospital and came to learn from his sister that on the previous day her husband Sanjiv and his younger brother Sujit mercilessly beat her being aided and abetted by their parents and then by pouring kerosene on her and her baby, they were set on fire. It is also the case of the prosecution that during the period she was alive she gave three successive dying declarations at the hospital. The first one was given to her attending doctor recorded in the bed head ticket, next in the ward to her doctor and recorded in presence of the staff nurse and the Investigating Officer and lastly to the Investigating Officer recorded under section 161 Cr.P.C.;