Sandeep MEHTA, J. - (1.) The appellant Smt. Durga (date of birth 03.08.1998) has been convicted and sentenced as below vide judgment dated 12.12.2018 passed by the learned Sessions Judge, Pratapgarh, in Sessions Case No.115/2016: Offences Sentences Fine Fine Default sentences Under Section Life Imprisonment Rs.5,000/ Six Months 302 IPC additional simple Imprisonment Being aggrieved of her conviction and sentences, the appellant has preferred the instant appeal under Section 374(2) Cr.P.C. Facts in brief are that the complainant Unkar (PW-3) lodged a written report (Ex.P/3) at the Police Station Suhagpura on 16.05.2016 alleging inter alia that on the previous evening i.e. on 15.05.2016, his son Bherulal and his daughter-in-law Durga quarelled with each other because Durga had not prepared food. They were in a habit of fighting with each other on small issues. The informant took dinner and after pacifying the spouses, he went towards the naala for easing himself. Thereafter, he went to meet Heera. He returned home at 11 o' clock. Thinking that the spouses would have gone to sleep in their room, he put up a cot outside the house and went to sleep. In the night at about 12 o' clock, he again heard the husband and wife quarelling with each other upon which, he woke up and saw Durga having an axe in her hand with which, she had assaulted his son Bherulal on his neck. Bherulal was lying in the Baramada in a bleeding condition. Upon seeing Unkar, Durga threw the axe down and went away. He checked his son for sign of life but found that he had passed away. He alleged that his daughter-in-law Smt. Durga had killed Bherulal by inflicting an axe blow on his neck. On the basis of this report, an FIR No.51/2016 was registered at the Police Station Suhagpura and investigation commenced. The appellant herein was arrested. Her date of birth as entered in the school record was 03.08.1998 and thus, being a juvenile, she was presented before the Principal, Juvenile Justice Board, Pratapgarh. It may be stated here that despite the appellant, being a 'female' child in conflict with law, at no stage of the case, was any female police officer associated with the investiation. Be that as it may. After concluding the formalities of investigation, the investigating officer proceeded to file a charge-sheet against the appellant before the Principal Magistrate, Juvenile Justice Board, Pratapgarh on 27.06.2016 for the offence under Section 302 IPC.
(2.) Since the child was arrainged for a heinous offence as defined under Section 2, the Juvenile Justice Board decided to hold an enquiry under Section 15 of the The Juvenile Justice (Care and protection of Children) Act, 2015 (hereinafter referred to as 'the Juvenile Justice Act') to consider whether the child should be tried as an adult. After the statements of two witnesses had been recorded in the purported inquiry under Section 15 of the Act of 2015, the learned Principal Magistrate, Juvenile Justice Board proceeded to pass an order dated 22.08.2016 observing that the child in conflict with law appeared to be posessed of the mental and physical capability to commit a henious offence and that she was in a position to understand the consequences of her act and accordingly directed that the child should be subjected to medical examination through a psychiatrist. The child was sent to the MBH Hospital, Udaipur wherein, she was admitted in the Psychiatry Ward. The Medical Board comprising of three Professors of which, one was from the psychiatry department, carried out the mental and physical assessment of the child and issued its report dated 30.08.2016 in the following terms: "Members of the board examined her after admission in psychiatry ward from 27th Aug to 30th Aug 2016 vide indoor reg. no.20588. On mental state examination she was found to be cooperative and communicative, no excitement or retardation, no inappropriateness of mood, hallucinations and delusions were not evident and her higher mental functions are intact and insight is also present. She is aware of the act done by her, she is aware about the consequences and according to her she had conflict with her husband from last 3 yrs off and on and on the day of crime they were both fighting physically and verbally."
(3.) The Principal Magistrate, upon receiving the record, proceeded to pass an order dated 05.09.2016 observing that as per the secret letter dated 29.08.2016 received from the Probation Social Welfare Officer, Social Justice and Empowerment Department, Pratapgarh., the child accused was feigning mental impairment after killing her husband whereas, the Medical Board's report indicated that she was physically and mentally able person. Based on this report of the Medical Board, the learned Principal Magistrate, Juvenile Justice Board vide the final order dated 05.09.2016 under Section 15 of the Juvenile Justice Act and directed that the case of the apellant, who was a child in need of care and protection above the age of 16 years on the date of incident, was transferred to the Court of Sessions, Pratapgarh for trial as an adult. We have carefully perused the order-sheets of proceedings drawn up by the learned Principal Magistrate of the Juvenile Justice Board and find that in none of these proceedings before issuance of the final order dated 05.09.2016 whereby, the learned Principal Magistrate, directed that the assessment of the child had been made under Section 15 of the Juvenile Justice Act and transmitted her case to the Sessions Judge, Pratapgarh for trial, was the child provided any effective opportunity of hearing or legal representation. ;