- (1.) ON 21.5.2008, at about 9:30/10:00 PM, Dabi @ Sahil was murdered by Bunty @ Shoyab s/o Shaukat, Shahzad s/o Babu Bhai, Shakil s/o Shafi, Arif and Boniya at the tea vend of Irfan. At the very initial stage Arif was determined as delinquent juvenile in conflict with law and was sent for trial before the concerned Juvenile Justice Board. Three accused, Bunty @ Shoyab, Shehzad and Shakil were sent for trial, on the basis of written report (Exhibit -P/8), which led to registration of FIR No.295/2008 at Police Station Gumanpura, Kota. In the written report (Exhibit -P/8), the complainant Shanu Painter (P.W.7) stated that on 21.5.2008, at about 9:00/9:30 PM, he along with Dabi @ Sahil @ Mohd. Arif, Akhtar (P.W.3), Abdul Rameez (P.W.8), Ali Bahadur (P.W.10) and Ramchandra Meghwal (P.W.9) were taking tea at the Tea Vend of Irfan. Dabi @ Shoyab in order to urinate himself went behind the tea vend. After sometime, Dabi @ Shoyab raised noise of 'Bachao Bachao' upon which they all ran at the back of tin shed of tea vend and witnessed that Bunty s/o Shaukat armed with sword, Shakil, Boniya, Shahzad and Arif all four armed with knives were causing injuries to Dabi @ Sahil. Bunty gave a sword blow on the left side of head of Dabi @ Sahil. Shahzad gave a knife blow on the right arm pit. Boniya and Arif gave knife blows each on the chest and Shakil gave knife blow on buttocks. Due to receipt of injuries, Dabi @ Sahil died at the spot. Shanu Painter, Sikku, Ramchandra Meghwal, Akhtar and Ali Bahadur ran to save him then, all the accused persons ran away from the spot along with their weapons. The complainant along with other witnesses brought Dabi @ Sahil in an auto -rickshaw to MBS Hospital, Kota, where he was got admitted for treatment. During treatment, after sometime Dabi @ Sahil was declared dead. Few days before, Dabhi @ Sahil had a fight with Bunty, Shahzad etc. Keeping that as grudge in mind, the above said persons armed with sword and knives have caused injuries. The above said persons have caused injuries with intention to cause murder of Dabi @ Sahil. The court of Additional Sessions Judge (Fast Track) No.2, Kota, vide impugned judgment dated 13.8.2010 held three accused namely, Bunty, Shakil and Shahzad guilty of offence under Section 302/34 IPC. Bunty @ Shoyab was also held guilty of offence under Section 4/25 of Arms Act. Having convicted the accused for the above said offences, the trial court vide a separate order of even date, sentenced them as under: - U/s 302/34 IPC - to undergo life imprisonment and to pay a fine of Rs. 5,000/ -, in default of payment of fine, to further undergo two months S.I. U/s 4/25 Arms Act - to undergo two years S.I., and to pay a fine of Rs. 1,000/ -, in default of payment of fine, to further undergo fifteen days S.I. Aggrieved against their conviction and sentence, Bunty @ Shoyab preferred D.B. Criminal Appeal No. 238/2011, Shakil filed D.B. Criminal Appeal No. 398/2011 and Shahzad instituted D.B. Criminal Appeal No. 847/2010. During the pendency of the Appeal No. 238/2011, Bunty took a plea that on the day of occurrence, he was delinquent juvenile in conflict with law and due to retrospective operation of the Juvenile Justice (Care and Protection of Children), Act, 2000 (hereinafter to referred as 'the Act of 2000'), because of amendment carried in the Act, and in view of Section 2(k), 2(I) and 7(A) read with Section 20 of the Act of 2000, he is to be treated as delinquent juvenile in conflict with law and he is to be dealt with as per provisions of the Act of 2000 and rules made thereunder. A co -ordinate Bench of this Court on 12.9.2013, while deciding the D.B. Criminal Misc. Application No. 7905/2013 in D.B. Criminal Appeal No. 238/2011, Bunty vs. State of Rajasthan disposed of the appeal of the co -accused, Bunty by passing the following order: - "In the above -noted appeal, the appellant -applicant (Banti @ Shoyab) has challenged the judgment and order dated 13th August, 2010 passed by the Additional Sessions Judge (Fast Track) No.2, Kota, convicting him for offence under Section 302 read with Section 34 I.P.C. and hence, sentencing him to life imprisonment, as well as imposing a fine of Rs.5,000/ -; in default of payment of fine, directing him to further undergo two months simple imprisonment. He has also been convicted for offence under Section 4/25 of the Arms Act and has been sentenced to two months simple imprisonment and imposed with a fine of Rs.5,000/ -; in default of payment of fine, to further undergo fifteen days simple imprisonment.
(2.) AN application has been preferred on behalf of the appellant under Section 15 of the Juvenile Justice (Care and Protection of Children) Act, 2000 (hereinafter referred to as 'the Act of 2000', for short), with a prayer for his release forthwith since he has undergone more than the maximum period of incarceration for which the juvenile may be sent to a special home i.e., a period of three years.
(3.) ON 21st January, 2013 when the matter came up before this Court, an order was passed, which reads thus: - "Learned counsel for appellant has filed an application under Section 6(2), 7(A) and 15 of the Juvenile Justice (Care and Protection of Children) Act, 2000 and submits that on the date of alleged incident i.e. 21st May, 2008, the applicant was juvenile, as opined by the Medical Board in its report dated 19th August, 2011 and is entitled to seek protection of the provisions of Act 2000 and treating him to be a juvenile and taking note of the fact that he has served the sentence which could be awarded to him, he is entitled to be released forthwith. Learned counsel further submits that it is true that he faced regular trial for the alleged incident dated 21st May, 2008 and no objection was raised during trial claiming to be a juvenile but that can be raised at any stage of the case even after being convicted by the competent court of jurisdiction. Counsel further submits that after the Medical Board expressed its opinion that he was juvenile on the date of incident, at least that can be taken note of by the court for passing appropriate orders providing him protection as envisaged under the provisions of the Act 2000 while treating him as juvenile. He has also got his date of birth registered as per Birth and Death Registration Act, 1969 on 11th January, 2013, copy whereof has been placed on record and in support placed reliance on the judgment of the Apex Court reported in Mohan Mali and Anr. Vs. State of M.P.,2010 RCC 319. Learned Public Prosecutor has not filed any formal reply to the application, however, submits that no such objection was raised while he was facing regular trial and so -called birth certificate, which is annexed with the application, has been issued at a much later date after the date of alleged incident and as regards the report furnished by the Medical Board, it was not constituted under the directions of the court, as such, unless the matter is inquired upon by the competent court, the report of the Medical Board could not be taken note of in isolation holding him juvenile on the date of alleged incident i.e. 21st May, 2008 and submits that the application filed at such a belated stage by the appellant deserves to be dismissed. This court took note of the submissions made by the parties and also the material placed on record. It reveals that during pendency of proceedings before the trial court, no such objection was raised by the accused appellant, therefore, there is no evidence oral or documentary so led by either parties for examining the age of accused appellant by the learned trial court. As regards, the birth certificate, which has been placed on record it was registered on 11st January, 2013 much after the occurrence of alleged incident and as regards the opinion of Medical Board, it was not constituted under the directions of the court for examining the age of accused appellant but this fact cannot be ruled out that in view of Section 20 of the Act 2000, the same are mandatory and being a beneficial piece of legislation, the application can certainly be moved at any stage of the case even after conviction by the competent court of jurisdiction. In these facts and circumstances and taking note of the facts stated above, we are of the view that the matter be sent to learned trial court for holding enquiry and recording the finding in respect of date of birth of the accused appellant Bunti alias Shoyab on the date of incident and the parties be allowed to lead evidence in support of their contentions. The learned trial court may record its finding in this regard and is further expected that enquiry be expedited and the report be sent to this court within a period of six months from the date of receipt of copy of this order and record. However, it is made clear that learned trial court may examine the record independently without being influenced by the observations made hereinabove. The Registry is directed to send original record along with copy of this order to the learned trial court for doing the needful. The learned trial court shall send report to this court soon after the completion of enquiry. Both the parties are directed to appear before the learned Additional Sessions Judge (Fast Track) No.2, Kota on 18th February, 2013. The application, in above terms, stands disposed of." In pursuance of the directions aforesaid and the order dated 7th March, 2013, the Court of Additional Sessions Judge No.5, Kota, has returned a finding to the effect that the appellant -applicant (Banti @ Shoyab) was below the age of 18 years and his age was not in any case more than 17 years on the date of incident i.e. 21.5.2008 and therefore, was a "juvenile" or "child" as defined under Section 2(k) of the Act of 2000.;