Prodip Bora and Another vs State of Assam

P.G. Agarwal, J.—In Sessions case No. 63(J-J)/92 accused Appellants Shri Prodip Bora and Shri Chandra Bora were convicted by the Sessions Judge, Jorhat u/s 304 Part-I read with Section 34 of the Indian Penal Code and sentenced to undergo rigorous imprisonment for 3 (three) years and to pay a fine of Rs. 1,000/- in default, further imprisonment for 6 (six) months. The present appeal has been preferred challenging the conviction and sentenced on number of grounds, but I find that matter can be disposed of on the applicability of Juvenile Justice Act.

The two brOrs. were aged about 14 and 15 years when they are convicted and sentenced after trial in the year 1994 as incident took-place in the year 1991 and the plea was raised before the Trial Court that in view of the provisions contained in Section 21 trial was bad in law. The learned Sessions Judge, however, dismissed the plea on the ground that serious case like this does not fall within the purview of the Juvenile Justice Act for short ''Act''.

The matter was considered by this Court in Criminal Appeal No. 28/95 disposed of on 17.2.98 and also in Criminal Appeal No. 16/96 disposed of on 18.8.98. Relying on the relevant provision of the Act and decision of the Apex Court in the case of Gopinath Ghosh Vs. The State of West Bengal, this Court held that trial of Juvenile by the Court pf Sessions is bad in law and violative of the provisions of the Act. In view of the finding of the learned Sessions Judge, Jorhat, there is no dispute at the bar that at the relevant time, accused Appellants will juveniles and no order of sentence for 3 (three) years could have been passed by the Sessions Judge.

It is fairly submitted by the learned Counsel for the Appellants that in the meantime, the Appellants have attained the age of majority and they are no more juvenile and as such even if matter is remand back, the Juvenile Court will not be in a position to pass any effective order u/s 21 of the Act. A similar situation arises in the case of Pradeep Kumar, Krishan Kant and Jagdish Vs. State of U.P., in Apex Court considered that the Appellants are aged more than 30 years, while sustaining, in order of conviction, quashed the award of sentence and directed them to be released forthwith. In the present case the two Appellants are on bail and they found also attained majority. Hence, on the above consideration relying on the decision of Pradip Kumar v. State of Uttar Pradesh, conviction of Shri Chandra Bora is maintained but and the order of sentence is quashed and he be released forthwith.

So far the other Appellant Shri Pradip Bora is concerned, he has been convicted u/s 302/34 of the Indian Penal Code. The evidence on record is very specific and it is categorically stated that the deceased had a altercation with the present Appellant Prodip Bora and due to intervention of the witnesses, they were separated. However, the other accused Chandra Bora came with a weapon and assaulted the deceased, as a result of which the deceased died and there is nothing on record to show that this accused took any part in the killing of the deceased or he had any intention or his shared the intention of the co-accused. I, therefore, hold that the accused Prodip Bora is not guilty of killing the deceased and he cannot be roped in with Section 34 IPC. The conviction of sentence is set aside and he and Prodip Bora is acquitted and forthwith.