Ajjoo v. State of U.P

Court No. - 13 Case :- CRIMINAL APPEAL No. - 458 of 1998 Appellant :- Ajjoo Respondent :- State of U.P. Counsel for Appellant :- Mohsin Iqbal,Mukul Rakesh Counsel for Respondent :- Govt. Advocate,Raghunath Prasad Hon'ble Saurabh Lavania,J.

¶1Heard Shri Mukul Rakesh, learned Senior Advocate assisted by Shri Atul Kumar Bhatt and Kumar Sushant Prakash, learned counsel for the appellant and Shri S.P. Tiwari, learned A.G.A. for the State-respondent.

¶2The instant appeal under Section 374(2) Cr.P.C. has been filed challenging the order dated 07.08.1998 passed by IIIrd Additional Sessions Judge, Unnao in Session Trial No. 788 of 1995 arising out of Case Crime No. 285 of 1995 under Sections 307, 504, Police Station - Bangarmau, District - Unnao. The trial Court awarded ten years rigorous imprisonment and fine of Rs. 5,000/- under Section 307 IPC.

¶3Brief facts of the case are to the effect that an FIR was lodged on

28.05.1995 at about 18:30 hours by Kamaluddin at Police Station - Bangarmau, District - Unnao. According to the FIR, the informant was at his shop situated at Badi Bazar Ganj Moradabad and there at about 06 p.m., Ajju S/o Aulia Miyan R/o Mohalla Dargah Sharif Kasba Ganj Moradabad came to his shop and there used abusive language and cause fire-armed injury to the informant/injured on his head and thereafter, the nephew of the infjured namely Naushad and Shahjad brought him to the Bangarmau Hospital at Bangarmau.

¶4After completion of investigation in the matter, the Investigation Officer submitted the charge-sheet (Ex.Ka-5) before the trial Court. The relevant documents were also submitted i.e. medico-legal report (Ex.Ka-2), chik FIR (Ex.Ka-3), GD Entry (Ex.Ka-4), site plan (Ex.Ka-6), X-ray report of injured and twenty seven other documents including Bed Head Ticket Folio (Ka.1).

¶5To establish its case before the trial Court, the prosecution produced and examined witnesses namely Kamaluddin (P.W.1), Naushad (P.W.2), Hafizur Rehman (P.W.3), Dr. Y.S. Sawan (P.W.4), Dr. Majhar Hussain (P.W.5), Constable Hasin Khan (P.W.6), SI Ramesh Chandra Kannaujiya (P.W.7) and S.O. A.K. Nigam (P.W.8).

¶6Dr. Y.S. Sawan (P.W.4) and Dr. Majhar Hussain (P.W.5) proved the medico-legal report and other medical documents including the X-Ray report and it plate. Formal witnesses proved the documentary evidence produced by the prosecution.

¶7Injured Kamaluddin (P.W.1) proved the allegations levelled in the FIR. The witnesses of fact, Naushad (P.W.2), Hafizur Rehman (P.W.3) also proved the basic story of the prosecution according to which the appellant caused fire-armed injury to the injured.

¶8After completion of evidence of the prosecution, the trial Court put question to the appellant in terms of Section 313 Cr.P.C. and in response, the appellant denied the charges and the case of the prosecution. It is stated that the injured case is completely false and he has been falsely implicated.

¶9Thereafter, the trial Court passed the judgment of conviction, under appeal, dated 07.08.1998

¶10While impeaching the judgment under appeal it is stated that the trial Court misread the evidence and passed the judgment of the conviction as such the interference is required.

¶11Shri S.P. Tiwari, learned A.G.A. for the State-respondent supported the judgment of conviction under appeal and stated that the statement of one witness is sufficient to convict an accused. In this case, the injured witness has deposed in unimpeachable terms that the appellant caused fire-armed injury and this statement cannot be ignored. The statement/testimony of the injured and prosecution story is duly supported by the medical evidence according to which the injured sustained fire-armed injury on the head as such no interference is required and the appeal is liable to be dismissed.

¶12At this stage, Shri Mukul Rakesh, learned Senior Advocate stated that the appellant, presently aged about 46 years, has already been declared juvenile vide order dated 07.03.2019 and according to the order dated 07.03.2019, the appellant was about 16 years 10 months 15 days on the date of incident i.e. on 20.05.1995 and as such the present appeal be dealt with accordingly.

¶13This Court finds from record of the present appeal that in compliance of order of this Court, Juvenile Board, District - Unnao has sent a copy of the order dated 07.03.2019. Relevant portion of the order, on reproduction, reads as under: "

अपचचररककशशरररजवचननररहमचनउररअजजजककओरससककशशरघशकषतकरनसहसतन

पचररनचपतपसतनतकरससकसपममकरनककयचगयचहहकक,

पचररपसतनतवचदमम

अकभयनकहह।घटनचकदनचसक20.05.1995.

समय6

बजसशचमककहह।घटनचकच

कदनचसकवसमयसपषकरनसकसललयसकनररयककछचयचपकतशचकमलपचररनचपतहह।

पचररनसवषर1991

ममहचईसकजलककपररकचयज.पर.

बशरररर.सर.कस.एम.

इणटरकचलसज

ससउतरररककरर।हचईसकजलपमचरपतकसअननसचरपचररककजनमकतलर

19.07.1978

हह।पचररकचअसलरनचमररजवचननररहमचनहह,

औरघरकचनचमअजजज

हहतरचपचररकसकपतचकचनचमसव०कररममनररहमचनतरचघरकचनचमऔललयचकमयय

हह।वचदरनसपरमसजचनचररपशटरममअजजजपनतऔललयचकमयचयललखचकदयच।पचररव

उससककपतचकचअसलरनचमनहहललखचयचरच।पचररदचरचसवयसवअपनसकपतचकस

असलरनचमवपतसकचकनवचसपमचरपतकदनचसक16.01.2017

जशककनगरपसचचयत

गसजमनरचदचबचदससबनवचयचगयचहह,

कशपरततकररहचहह।घटनचकदनचसक

20.05.1995

कककहरजचरहरहह,

जबककपचररकचजनमकतलरहचईसकजलपमचरपत

कसअननसचर05.07.1978

हह।इसपकचरघटनचकससमययहककशशररच।अततपचरर

कशककशशरघशकषतककयसजचनसकचकरनककयचगयचहह।

अपनसउककरनकस समररनममपचररदचरचरर.सर.कस.एम.

इणटरकचलसज,

गसजमनरचदचबचदकचमहटटरकनलसशनपमचरपतदचलखलककयचगयचहह।

सनचतरचपपतशकचअवलशकनककयच। वकशकरoनयायo(बालककoकव oदवखoरखव oएवनoसनरकण)oवनयमावलमo2007oकव oवनयमo12o(3) मेoपाववधावनतoवकयाoगयाoहoह वक,oउ्oवनधार णoकव oिलयवoवकशकरoअपचारमoकाoजक साकयoगहणoवकयवoजायवगा, ेउनमoवकशकरoअपचारमoकाo(ए)o(i)oमहदमकु लवशनoपमाणoपतoयाoउसकव oसमककoपमाण ेपतoयवदoउपलबधoहकoऔरoउसकव oउपलबधoनoहकनवoककoदशाoमoउकoवनयमoकव o(ii) पथमततoउपिसथवतoसकलoसवoजारमoजनमoपमाणoपतo(पलवoसकलoसवoवभन)oऔरoउसकवल ल अनुपिसथवतoमेo(iii)oकव oअनतगरतoवनगमoयाoनगरoपािलकाoपािधकरणoयाoपनचायतoदारा पदतoजनमoपमाणoपतoतथाoउपरककoवनयमoकव oकलाजo(बम)oमेoयहoउवलिखतoवकया गयाoहoह वकoकलाजo(ए)o(i)o(ii)oयाo(iii)oकव oउपलबधoनoहकनवoककoिसथवतoमेoवविधवत गवठतoमव डकलoबकडरoककoवचवकतसमयoरायoिलयाoजायवगा। पाथरनाo पतo पसतुतoहकनवo परoसमबनिधतoवव?ालयoकव o पधानाधयापकoककo शहवकक अवभलवखोo कव o सतयापनoहवतुo िजलाo वव?ालयoवनरमककoउनावoककo अवभलवखकo कव पवववषयोoकव oसतयापनoएवनoवादमoमकु दमाoककoआपितoपसतुतoकरनवoहवतुoनकवटसoपव षत वकयाoगया। आहहतoवकयवoजानवoपरoसमबनिधतoवव?ालयoकव oपधानाचायरoशमoअवनलoकु मारoकवटयार बकडरoकव oसमकoउपिसथतoआयव,oिजनहवoबतझरoसम.डबललo-1oकव oरपoमेoपरमवकतoकराया गयाoह।ह oमुखयoपरमकाoमेoउकoसाकमoदाराoकथनoवकयाoगयाoहoह वकoववoपधानाचायरoकव oपद परoअपहलo2018oसवoकायर तoह।ह oडम.सम.कव .एम.oइणटरoकालवजoगजन मुरादाबादoउनावoमे र र रररजवानुरहमानoउफoअजजoल पतु oकरममुरहमानoवनवासमoगनजमुरादाबादoथानाoबानगरमउ ेउनावoनवoककाo9oमo03.1.89oककoपववशoिलयाoथा।oपववशoकव oसमयoउसकव oसनरकक र े रदाराoजलवनयरoहाईoसकल लoबलापुरoदाराoवनगतoटम.सम.oमoररजवानुरहमानoककoजनम वतिथo 05.07.1978 oदजरo हकनवo कव o आधार o पर o वव?ालय o कव o अवभलवखकo मे ररजवानुररहमानoककoजनमoवतिथo 05.07.78oअनवकतoह।ह oउनकव o दाराoनयायालयoसव नकवटसoपापo हकनवo परoएस.आर. oरिजसटर, oगजटoहाईoसकलoवषरo 1991 oमेo तथाल उपिसथवतoपिन जकाoमल oसवoवमलानoकरoपसतुतoककoगयम,oिजसoपरoपदशरoक-1oता पदशरoक-4oडालाoगया।oउकoछातoकाoवव?ालयoकव oपववशoरिजसटरoमoे कमानकoसन0-65 कव oछातoपनिजकाo6360oपरoउसककoजनमoवतिथo05.07.1978oअनवकतoहकनवoकाoसाकय वदयाoगयाoह।ह िजलाo वव?ालयoवनरमककoउनावoसवo पापo ररपकटरo कव o अनुसारoकिथतoअपचारम ररजवानुररहमानoउफर oअजजलoकाoगजटoवoमहदमकु लवशनoपमाणoपतoहसताकररतoकरनवoकव उपरानतoपतावलमo परoसनलगo ह।ह oइसकव o अवतररकo किथतoअपचारमo वकशकरoकव सनरवककाoमाताoशममतमoरववयाoबवगमoपतनमoकरममुनररहमानoउफर oऔिलयाoवमयोoकक परमवकतoकरायाoगयाoह।ह oइसoसाकमoनवoअपनमoमुखयoपरमकाoमoे जकoकथनoवकयाoहoह वक े र हउसमoमहतवपलणoकथनoयहoहoह वकoजबoउसककoशादमoऔिलयाoवमयोoकव oसाथoहईoथम, तबoउनककoसबसवoछकटमoलड़ककo9oमाहoककoथम।oअजजलoसवoछकटमoतमनoलड़वकयोoह।ह ररजवानुररहमानoउफर oअजजoल काoनामoसकलoिलखवानoव वपताoगयवoथव,oवहoनहमoगयमoथम।ल अजजलo नवo ककाo 10 oगजन मुरादाबादoइणटरoकालवजoसवo पासoवकयाo था।oसकलoकवल अवतररकoअजजलoकव oजनमoकाoककईoपमाणoपतoउनकव oपासoहकनवoसवoइनकारoवकयाoगया ह।ह उकoसावकयोoकाoसाकयoअनवकतoवकयवoजानवoकव oउपरानतoअवभयकजनoदाराoअपचारमoकक ओरoसवo डम.सम.कव .एम. oइणटरoकालवजoगनजमुरादाबादoउनावoमoे दािखलाo कव o समय पसतुतoटम.सम.oजलवनयरoहाईoसकल लoबलापुरoगजन मुरादाबादoककoफजरoहकनवoकव oआधार परoचुनझतमo दमo गयम, oिजसकव o समबनधoमेo जलवनयरoहाईoसकल लoबलापुरoकव o सहायक अधयापकoनमलoकमलoककoपरमवकतoकरायाoगया,oिजनकव oदाराoअवभलवखकoकव oआधार परoवदयवoगयवoसाकयoमेoजलवनयरoहाईoसकल लoगनजमुरादाबादoमेoवशकाoगहणoकरनाoनहम

पचयचगयच।तदशपरचनतवचदरमनकदमचकशपनतनशकटसइसआशयककजचररककगयर

ककहचईसकजलपमचरपतममअसककतजनमकतलर05.07.1978

ससकभनयकदकशई

जनमकतलरकलरतअपचचररररजवचननररहमचनउररअजजककहहतशवहकनयतकदनचसक

परपसतनतकरस,

ककनतनवचदरमनकदमचकससमकबशररउपससरतआनसकसउपरचनत

अकभयशजनकशइसबचवतकईअवसरकदयसजचनसकसबचवजजदभरउनकसदचरचहचई

सकजलपमचरपतममअपचचररअजजजकसअसककतजनमकतलरससकभनकशईअनयजनम

कतलरकचसचकयपसतनतनहहककयचजचसकच।

उलसखनरयहहकककलरतअपचचररककशशरररजवचननररहमचनउररअजजजककओरसस

अपनसजनमकतलरकसबचवतहचईसकजलपमचरपतदचलखलककयचगयचहह, लजसस

समबसलधतकवदचलयकसपधचनचचचयरएवसलजलचकवदचलयकनररककककररपशटरसससहर

हशनसककपनकषककगयरहह।रर.सर.कस.एम.

इणटरकचलसजबबगरमउममकलरतअपचचरर

अजजजकचककच9 व10

ममअधययनकरहचईसकजलपररकचपचसककयचजचनचसचकयय

सससचकबतककयचजचचनकचहह।ऐससममककशशरनयचय(

बचलकशकसदसखरसखवससरकर)

अलधकनयम2000

ममउकललखतपचकवधचनशकसअननसचरमहदरकनलसशनपमचरपतजशकक

पचरकमकसचकयहहकससचकबतहशनसकसउपरचनतअनयककसरसचकयकसगहरककयस

जचनसककआवशयकतचपतरतनहरहशतरहह।जहचयतकवचदरमनकदमचकचयहतकरहहकक

उसकसदचरचरर.सर.कस.एम.

इणटरकचलसजममलजसटर.सर.

कसआधचरपरदचलखलच

ललयचगयचरचवहरजरहह,

तशइसकसललयसवचदरमनकदमचकलरतअपचचररअरवच

उसकसससरकककसकवरदअलगससकचयरवचहरकरसकतचहह,

ककनतनमहटटरकनलसशन

पमचरपतलजसमसउकललखतअपचचररकसजनमकतलरजशककसमबसलधतकवदचलयकस

पधचनचचचयरएवसलजलचकवदचलयकनररकककससचकययसससचकबतककजचचनककहह,

ककशशरनयचयअलधकनयमकसपचवधचनशकसअननसचरपचरकमकसतरकचसचकयहहऔर

जबपचरकमकसतरकचसचकयपतचवलरपरमतजजदहहतशककसरअनयसचकयकशगचह

ककयचजचनचसनससगतनहहहशगच।वचदरमनकदमचदचरचउकजनमकतलरससकभन

अपचचररककअनयकशईजनमकतलरहशनसकचसचकयनहरकदयचगयचहह।पसतनतमचमलस

कसतथयएवसपररससरकतयशतरचपतचवलरपरउपलबधसचकययकसआधचरपरबशररइस

कनषकषरपरपहहयचतरहहकककलरतअपचचररररजवचननररहमचनउरर अजजजकस

महटटरकनलसशनपमचरपतममअसककतजनमकतलरकदनचक05.07.1978 हह,

औरघटनच

कचकदनचक20.05.1995

हशनचदकषरतहह।

ऐससममघटनचकसकदनचसकपरककशशर

अपचचरर

वषर

मचह

कदनहशनचपचयचजचतचहह।पसतनतककयसगयसशहककक

अकभलसखयएवसउपलबधसचकययससघटनचकसकदनचसकपरअपचचररककआयन

वषरसस

कमपचयचगयचहह।

अततअपचचररककओरससपसतनतपचररनचपतबचवतककशशर

घशकषतकरनससवरकचरककयसजचनसयशगयहह। आदसश

पचररनचपतकदनचसककत26.11.18, अ.सस. 282/95,

अनतगरतधचरच307, 504 भच.द.सस.

रचनचबबगरमउ,

लजलचउनचवकसमचमलसममघटनचकसकदनचसक20.05.1995 पर

अपचचररररजवचननररहमचनउररअजजजकशककशशरनयचयबशररदचरचककशशरघशकषत

ककयचजचतचहह।सवरसमबसलधतसजकचतहश।तदशपरचनतकचयचरलयकनयमचननसचरआदसश

ककपकतमचननरयउचचनयचयचलयकशपसकषतकरनचसनकनसशचतकरम।"

¶14Considered the submissions advanced by learned counsel for the contesting parties and perused the records.

¶15It would be apt to indicate that it is a settled proposition of law that the testimony/evidence of injured witness would prevail over the testimony of other witnesses and the evidence available on record. The testimony/evidence of injured witness should not be ignored. The evidence of an injured witness has greater evidentiary value and unless compelling circumstances exist, his statement is not be discarded lightly. The evidence of injured witness cannot be doubted on account of embellishment in natural conduct or minor contradictions.

¶16In the instant case, injured Kamaluddin (P.W.1), before the trial Court, in specific terms stated that gun-shot injury was caused by the appellant and his statement is also supported by medical evidence on record including medico-legal report and X-ray plate duly proved by Dr. Y.S. Sawan (P.W.4) and Dr. Majhar Hussain (P.W.5) and in cross-examination, these witnesses remained intact.

¶17For the reasons aforesaid, this Court finds no error in the judgment, under appeal, dated 07.08.1998 passed by IIIrd Additional Sessions Judge, Unnao in Session Trial No. 788 of 1995.

¶18However, in the facts and circumstances aforesaid it would be apt to take note of the observations made by Hon'ble Apex Court in the judgment passed in the case of Karan Alias Fatiya Vs. State of Madhya Pradesh reported in (2023) 5 SCC 504, whereby Hon'ble Supreme Court approved the view taken in the judgment(s) passed in the case of Jitendra Singh Vs. State of U.P. reported in (2013) 11 SCC 193, Mahesh Vs. State of Rajasthan reported in (2021) 18 SCC 582 and Satya Deo Vs. State of U.P. reported in (2020) 10 SCC 555 as also the provisions of Juvenile Justice (Care and Protection of Children) Act, 1986, according to which maximum punishment which could be awarded is three years imprisonment.

¶19Relevant portion of the judgment passed in the case of Mahesh (supra) is extracted herein-under: "2. The accused Appellants who admittedly were juveniles under the Juvenile Justice (Care and Protection of Children) Act, 2000 (hereinafter referred to as "Act of 2000") on the date of commission of the crime i.e. on 12th May, 2001 were tried in a regular Criminal Court and found guilty of offences punishable Under Sections 323, 324, 325, 427, 455 read with Section 149 of the Indian Penal Code, 1860. Both the accused Appellants were acquitted of the offence punishable Under Section 302 Indian Penal Code. The conviction Under Section 455 Indian Penal Code resulted in a sentence of rigorous imprisonment of three years which is the maximum of the punishments imposed on the accused Appellants. The said conviction and sentences have been affirmed in appeal by the High Court.

¶3The plea of juvenility of the accused Appellants was taken before this Court for the first time. Accordingly, notices were issued to the State to respond to the said claim of the accused Appellants. In the reply filed by the State the age of the accused Appellants, as claimed, on the date of occurrence was admitted by the State. The accused - Appellants, therefore, were juveniles on the date of occurrence

of

the

offence(s).

¶4In the aforesaid facts, two questions arise for determination in the present appeals before us. The first is with regard to the validity/correctness of the conviction recorded by the learned trial Court and affirmed by the High Court and, secondly, if the conviction to be maintained what should be the appropriate measure of punishment/sentence and whether the same should be imposed by this Court or the matter be remanded to the Juvenile Justice Board in accordance with the provisions of Section 20 of the Act of 2000.

¶5The position in law in this regard is somewhat unsettled as has been noticed and dealt with by this Court in Jitendra Singh alias Babboo Singh and Anr. v. State of Uttar Pradesh (2013) 11 SCC 193 wherein in paragraphs 24 to 27 four categories of cases have been culled out where apparently different approaches had been adopted by this Court. The net result is summed up in paragraph 28 of the aforesaid report which explains the details of the categorization made in the earlier paragraphs of the said report. Paragraph 28 of the said report, therefore, would require a specific notice and is reproduced below: "28. The sum and substance of the above discussion is that in one set of cases this Court has found the juvenile guilty of the crime alleged to have been committed by him but he has gone virtually unpunished since this Court quashed the sentence awarded to him. In another set of cases, this Court has taken the view, on the facts of the case that the juvenile is adequately punished for the offence committed by him by serving out some period in detention. In the third set of cases, this Court has remitted the entire case for consideration by the jurisdictional Juvenile Justice Board, both on the innocence or guilt of the juvenile as well as the sentence to be awarded if the juvenile is found guilty. In the fourth set of cases, this Court has examined the case on merits and after having found the juvenile guilty of the offence, remitted the matter to the jurisdictional Juvenile Justice Board on the award of sentence."

¶6The validity of the conviction in respect of the incident which occurred almost two decades back, in our considered view, ought to be decided in these appeals and the entire of the proceedings including the punishment/sentence awarded should not be interfered with on the mere ground that the accused Appellants were juveniles on the date of commission of the alleged crime. Judicial approaches must always be realistic and have some relation to the ground realities. We, therefore, adopt one of the possible approaches that has been earlier adopted by this Court in the four categories of cases mentioned above to examine the correctness of the conviction of the accused Appellants under the provisions of the Indian Penal Code, as noticed above.

¶7In this regard, having perused the materials on record we find no ground whatsoever to take a view different from what has been recorded by the learned trial Court and affirmed by the High Court. The conviction of the accused Appellants Under Sections 323, 324, 325, 427, 455 read with Section 149 Indian Penal Code accordingly shall

stand

affirmed.

¶8This will bring us to a consideration of the sentence to be awarded. Here again, in the four categories of cases that have been noticed in Jitendra Singh (supra) and in several subsequent decisions of this Court in Abdul Razzaq v. State of Uttar Pradesh (2015) 15 SCC 637, Mohd. Feroz Khan alias Feroz v. State of Andhra Pradesh

(2015) 16 SCC 186, Mumtaz alias Muntyaz v. State of Uttar Pradesh (2016) 11 SCC 786 and Mahendra Singh v. State of Rajasthan (2016) 16 SCC 312 different approaches have been adopted. In some cases, the question of punishment has been left to be determined by the Juvenile Justice Board in view of the provisions of Section 20 of the Act of 2000. In other cases, the issue of punishment has been dealt with by the Court having regard to the fact that on the date when the Court had considered the issue the juvenile(s) have advanced in age.

¶9The present is a case where the accused Appellants though juveniles on the date of commission of the alleged crime are, as on today, middle aged persons. The accused Appellant - Mahesh in Criminal Appeal arising out of Special Leave Petition (Criminal) No. 2934 of 2015 had undergone the custody for a period of nearly one year whereas the accused Appellant - Arjun in Criminal Appeal arising out of Special Leave Petition (Criminal) No. 5370 of 2015 had suffered custody for about eight (08) months. The maximum sentence, as already noted, is three years. Having regard to the long efflux of time we are of the view that it will not be necessary, in the facts of the present cases, to cause a remand of the matter to the Juvenile Justice Board for a decision on the quantum of sentence for the reason even if such a remand is made and the Juvenile Justice Board comes to a decision that in addition to the period of custody suffered by the accused Appellants they need to suffer a further period of custody, such custody can only be in a remand home or a protection home to which places the accused Appellants, because of their age as on today, cannot be sent."

¶20Relevant portion of the judgment passed in the case of Karan Alias Fatiya (supra) is extracted herein-under: "33. The above judgments relate to an offence covered by either the Juvenile Justice Act, 1986 or the 2000 Act. We now proceed to briefly discuss the provisions under the 2015. Act. Section 9 of the 2015 Act is already reproduced in the earlier part of this judgment. According to Sub-section (3) of Section 9 of the 2015 Act, the Court which finds that the person who committed the offence was a child on the date of commission of such offence would forward the child to the JJB for passing appropriate orders and sentence, if any, passed by the Court shall be deemed to have no effect. This does not specifically or even impliedly provide that the conviction recorded by any Court with respect to a person who has subsequently after the disposal of the case found to be juvenile or a child, would also lose its effect rather it is only the sentence if any passed by the Court would be deemed to have no effect.

¶34There is another reason why a trial conducted and conviction recorded by the Sessions Court would not be held to be vitiated in law even though subsequently the person tried has been held to be a child.

¶35The intention of the legislature was to give benefit to a person who is declared to be a child on the date of the offence only with respect to its sentence part. If the conviction was also to be made ineffective then either the jurisdiction of regular Sessions Court would have been completely excluded not only Under Section 9 of the 2015 Act but also Under Section 25 of the 2015 Act, provision would have been made that on a finding being recorded that the person being tried is a child, a pending trial should also be relegated to the JJB and also that such trial would be held to be null and void. Instead, Under Section 25 of the 2015 Act, it is clearly provided that any proceeding pending before any Board or Court on the date of commencement of the 2015 Act shall be continued in that Board or Court as if this Act had not been enacted.

¶36Section 25 is reproduced hereunder:

¶25Special provision in respect of pending cases. - Notwithstanding anything contained in this Act, all proceedings in respect of a child alleged or found to be in conflict with law pending before any Board or court on the date of commencement of this Act, shall be continued in that Board or court as if this Act had not been enacted.

¶37Having considered the statutory provisions laid down in Section 9 of the 2015 Act and also Section 7A of the 2000 Act which is identical to Section 9 of the 2015 Act, we are of the view that merits of the conviction could be tested and the conviction which was recorded cannot be held to be vitiated in law merely because the inquiry was not conducted by JJB. It is only the question of sentence for which the provisions of the 2015 Act would be attracted and any sentence in excess of what is permissible under the 2015 Act will have to be accordingly amended as per the provisions of the 2015 Act. Otherwise, the Accused who has committed a heinous offence and who did not claim juvenility before the Trial Court would be allowed to go scot-free. This is also not the object and intention provided in the 2015 Act. The object under the 2015 Act dealing with the rights and liberties of the juvenile is only to ensure that if he or she could be brought into the main stream by awarding lesser sentence and also directing for other facilities for welfare of the juvenile in conflict with law during his stay in any of the institutions defined under the 2015 Act.

¶38In view of the above discussion and the position in law as laid down by the aforesaid judgments and many others referred to in the above judgments, we approve the view taken by this Court in the case of Jitendra Singh (supra), Mahesh (supra) and Satya Deo (supra).

¶39For all the reasons recorded above, it is ordered as follows: The conviction of the Appellant is upheld; however, the sentence is set aside. Further as the Appellant at present would be more than 20 years old, there would be no requirement of sending him to the JJB or any other child care facility or institution. Appellant is in judicial custody. He shall be released forthwith. The impugned judgment shall stand modified to the aforesaid extent."

¶21Upon considering the aforesaid including the date of incident i.e.

20.05.1995, the age of the appellant at the time of commission of crime i.e. 16 years 10 months and 15 days, as per the order dated

07.03.2019 passed by Juvenile Board, District - Unnao, and the present age of the appellant i.e. about 46 years (forty six years), the conviction of the appellant is upheld and in view of the present age of the appellant i.e. about 46 years as also efflux of time since the date of occurrence, there would be no requirement of sending the appellant to Juvenile Justice Board or other child care facility or institution and accordingly, the sentence awarded by the trial Court is hereby modified to one already undergone and fine of Rs. 5,000/-, which shall be deposited if already not deposited, within a period of one months from today, failing which the same shall be recovered as per law.

¶21The instant appeal is partly allowed. Order Date :- 24.5.2024 Mohit Singh/- High Court of Judicature at Allahabad, Lucknow Bench