- (1.) THIS appeal has been preferred by the appellant Pachchu @ Pachua @ Jainarayan Mahto @ Narayan @ Pachu Kumar Mahto against the judgment and order of 1st Additional Sessions Judge, Bermo at Tenughat dated 4.12.2007 in S.T.No. 378 of 2006 by which the appellant has been found held guilty under Section 302/34 of the Indian Penal Code and Section 201/34 of the Indian Penal Code.
(2.) IN the present appeal main point agitated before us at present is that the appellant having claimed to be below 18 years of age on the date of occurrence has been dealt with illegally under the normal provisions of trial along with one Nageshwar Mahto. It has been asserted that the age of the appellant was apparently below 18 years which fact was brought before the trial Court vide application (Annexure -1) dated 6.2.2007 forwarded by the Superintendent of Sub Jail, Tenughat to the Court concerned, praying there into take steps for his production before the juvenile justice board for enquiry. However the learned trial Court having noticed this fact vide order dated 7.2.2007 did not initiate any enquiry to ascertain the age of the appellant and tried him alongwith Nageshwar Mahto which is in violation of the fundamental rights of the appellant. In this context, heard the learned Counsel for the appellant and the learned APP appearing for the State at length. The fact remains that on 7.2.2007 a petition was received by the trial Court forwarded through the Jail Superintendent asserting therein that he was below 18 years of age on the date of occurrence as per Admission Card issued by Jharkhand Academic Council, Ranchi Annexure -1 showing one Jainarayan Kumar Mahto whose date of birth given as 27.5.1989. This fact is not disputed by the learned Counsel for the State. 2005 (3) SCC 551 where in their Lordships have consistently held that a person aged below 18 years on the date of alleged occurrence should be tried under the provisions of Juvenile Justice (Care and Protection of Children) Act, 2000. In Pratap Singhs case the point has been set at rest which date should be deciding factor to treat the accused as a juvenile.
(3.) This fact is undisputed that on 7.2.2007 the trial Court received an application filed by the appellant through Superintendent of Sub Jail, Tenughat that he was a juvenile. The moment the learned trial Court received such application it was incumbent upon him to get the matter enquired under the provisions of law whether the appellant wag a juvenile on the date of occurrence or not.;