S.K. Jillani vs State

Ajit K. Sengupta, J.—Applicant Sk. Jilani who was found to be a minor on the date of commission of murder of his mother was convicted u/s 302 of the Indian Penal Code and was sentenced to suffer rigorous imprisonment for life notwithstanding Section 24 of the West Bengal Children Act, 1959.

Shortly stated, prosecution case is that on September 16, 1985, at about 8.15 a.m. an F.I.R. was lodged by Nefaz-uddin in the Bhagabanpur P.S. that his wife Seherjan was murdered by unknown person or persons with some sharp cutting weapon when the Police took investigation and came to the spot and held enquiry. The case in the F.I.R. was that the said Nefazuddin with his brother went to catch fish in the rivulate with instruments called "banki" which were kept in the cowshed. Entering the said cawshed he found his wife was lying in pool of blood and throat being almost cut. He raised a cry when neighbours came in. His deceased wife bore him 5 daughters and 2 sons both of whom were minors below the age of 18 years. Daughters were in their father-in-law's house. His eldest son Sk. Jilani with his brother and one sister were sleeping in their one big bed-room. The Police sent the dead body to hospital morgue for Post-Mortem Examination and also made a seizure list of blood-stained wearing apparels of the deceased. By the time he came back to his house and found his minor son Jilani was taken to the house of one Tamur Sk. where there was village chowkidar and several persons. It is alleged that Sk. Jilani made extra-judicial confessional statement that he had cut the threat of his mother in the cowshed because she used to ask money from her relations and also asked for food sometimes. This was beneath the dignity of the accused's family. On that extra-judicial confession the minor was arrested and a dagger and his "lungi" were seized.

The learned S.D.J.M. Contai found on enquiry that the Appellant was a minor but still he held that the offence as disclosed to be exclusively triable by the Court of Sessions. The minor, Jilani, was refused bail but he found bail on the expiry of ninety days.

Sk. Jilani was committed by the learned S.D.J.M. to the Sessions Judge, Midnapo who took cognizance upon the commitment and thereafter it was transferred before the Additional Sessions Judge, Midnapore, for trial. The accused/Appellant Sk. Jilani, who was on bail, appeared before the learned Additional Sessions Judge on the date fixed and filed an application stating that he was a minor and the minority was enquired into and it was found on enquiry that Jilani was a child on the date of occurrence.

On June 15, 1988 the particulars of accusations were explained to Jilani asking him to make defence, if any, to which he pleaded not guilty. Thereafter the instant enquiry proceeded with under the Criminal Plocedure Cods and not under the West Bengal Children Act, 1959.

In this case there was no direct evidence. But it proceeded mainly on extra-judicial confession seated to have been made by the Appellant F.l.R. was lodged by the father of the accused. In the F.I.R. he did not mention the name of the accused. It has been contended that No. conviction can be sustained in this case on the basis of the extra-judicial confession, as it is not reproduced in the exact language and words of the accused, nor the reason or motive behind such confession has been stated. Such alleged confession was not made to his trusted persons. In fact, it was made before the Police and, accordingly, it is hit by Section 25 of the Evidence Act.

The Supreme Court in Thimma v. State of Mysore AIR 1981 S.C. 1871 held as follows:

An unambiguous confession is admissible in evidence, and free from suspicion suggesting its falsity is a valuable piece of evidence which possesses a high probative force because it emanates directly from the person committing the offence. But in the process of proof of an alleged confession, the Court has to be satisfied that, it is voluntary, it does not appear to be the result of inducement, threat or promise as contemplated by Section 24, Indian Evidence Act, and the surrounding circumstances do not indicate that it is inspired by some improper or collateral consideration suggesting that it may not be true. For this purpose, the Court must scrutinise all the relevant factors, such as, the person to whom the confession is made, the time and place of making it, the circumstances in which it is made and finally the actual words used.

Let us now consider the extra-judicial confession alleged to have been made by the accused. On September 16, 1985, at about 10-30 a.m. the accused was detained in the house of Sk. Tamuk, who was not examined. The said alleged extra-judicial confession was allegedly made during interrogation by the Investigating Officer (P.W. 12). At that lime Sk. Saidul Islam of village Radhapur (P.W. 2), Jam-shed Ali Shah of village Radhapur (P.W. 3), Sk. Abed Ali (P.W. 4), Sk. Sukumar Ali, the village chowkidar (P:W. 5) and Waheed Ali Khan (P.W. 9) were present. P.W. 2 Sk. Saidul Islam stated in his evidence that

the Police officer interrogated the accused about the murder of my sister. Accused stated to daroga that he committed murder of his mother. Accused told that he committed murder of his mother as because his mother used to take food in the house of others and used to take money from others without their consent and as the conduct of his mother was beneath the prestige of the accused he committed murder of his mother.

Accused disclosed to the Police officer that he committed murder of his mother with the help of a dagger. He also told them that he would point out the dagger which was kept concealed. In cross-examination he stated as follows:

The accused disclosed to daroga that he committed murder of his mother- before daroga interrogated the accused about the murder. I did not state to the Police that accused before the interrogation by the Police disclosed about the commission of murder of his mother by him.

P.W. 3 Jamshed Ali Shah stated in his evidence as follows:

I came to know from the people assembled that accused Jilani committed murder of his mother. I thereafter interrogated accused Jilani and when Jilani told me that he committed murder of his mother. Jilani told me that his mother often used to beg food and money from others and which was against the dignity and prestige of him and he out of that committed murder of his mother.

In cross-examination he stated as follows:

I stated to the Police that on interrogation by me the accused told me that he committed murder of his mother as because his mother used to take food and money from others which could not be accepted by him. Accused was detained in the house of Tamir in a meeting by the villagers. I do not remember if the chowkidar was present in the meeting place.

P.W. 4 Sk. Abed Ali siated in his evidence as follows:

The villagers interrogated accused Jilani about the murder, when Jilani disclosed that he committed murder of his mother as because his mother used to beg food and money from other what was not liked by him.

In cross-examination stated as follows:

I did not hear from Tamir that Jilani committed murder of his mother. I saw accused Jilani inside his room when I went. I interrogated Jilani there. I was not present when Police came. Many people were present when Jilani made the statement. I myself did not interrogate anything to Jilali but other people present interrogated Jilani. Chowkidar was also present. Jilani made the statement in his house. Jilani was then encircled. I did not hear anybody to tell Jilani what he has got no fear in the event he makes confession. I was in the house of Jilani for about 1-/2 hours. Jilani made the confession on 1 or occasion.

P.W. 5 Sk. Sukumar Ali stated in his evidence as follows:

Accused Jilani in presence of other villagers including myself confessed that he committed murder of his mother. Accused told that he committed the murder of his mother as because his mother used to beg money and food from others which was not liked by him.

In cross-examination he said as follows:

Till before I went to Police I was in the house of Tamir. Jilani was in his house. Jilani was called though his uncle in the house of Tamir. He made confession in the drawing room of Tamir. Jilani disclosed that he committed murder of his mother. On several times, accused made confession in the house of Tamir 5 minutes after his arrival there. 40/50 persons including children and women were present there. I heard accused Jilani to make confession.

P.W. 9 Ohaed Ali Khan stated in his evidence as follows:

I saw the accused present in the drawing room of Tamir. Accused Jilani on interrogation disclosed that he committed murder of his mother. He told that as his mother used to beg on food and money from others and also as his mother had crypto maniac habits he committed murder of his mother. The house of Tamir and the house of the accused persons is on the common baslu.

In cross-examination he stated as follows:

We did not give any assurance to the accused before making any statement. I heard Jilani to confess once. I stated such fact, i.e. the confession made by Jilani to daroga. Besides daroga I did not state to anybody. Not a fact that accused Jilani did not state that he murdered his mother as his mother used to beg food and money from others and had some crypto maniac habits.

From the evidence of the prosecution witnesses as enumerated hereinbefore it will be evident that the said confession was not voluntary. He was detained and surrounded by several persons including those deposed. He made the statement on the interrogation by the Police officer and the aforesaid witnesses, the village chowkidar was present. The motive of making such confession is not brought out in the evidence. Having regard to the fact that confession was made in presence of the Investigating Officer and village chowkidar and the villager who encircled him and the persons were not his men of trust, the possibility of threat, inducement or promise in having such confession, if such confession was at all made, cannot be ruled out. Sk. Tamir in whose presence the accused is stated to have made the impugned confession was not examined. He was a material witness. It is also in evidence that the accused did not go to Sk. Tamur's house of his own volition. He was called there. In our view, therefore, this confession is not free from suspicion suggesting its falsity. That apart, the prosecution made no attempt to record the confession judicially although they fiad enough time to record the same by Judicial Magistrate before whom they produced P. Ws. 3 and 9 and another on December 10, 1985, for recording the statement u/s 164 of the Code of Criminal Procedure.

In Jagta Vs. State of Haryana, '' an extra-judicial confession was made in presence of Police officer. There the Supreme Court held that the evidence about extrajudicial confession is in the nature of things a weak piece of evidence. If the same is lacking in probability there would be no difficulty in rejecting it. We find no reason as to why the accused instead of surrendering himself before the Police would go to the house of Sk. Tamur to make confession. Nothing has been shown to us as to why the accused could not himself go and appear before the Police. As indicated earlier circumstances would show that extra-judicial confession was not made voluntarily and the circumstances in which such confession was alleged to have been made would affect the credibility of the evidence regarding the extra-judicial confession. That apart, extrajudicial confession was made before the Investigating Officer on his interrogation and such statement will be hit by Section 25 of the Evidence Act. No evidentiary value, therefore, can be placed on the evidence of the witnesses on such extra-judicial confession.

There is no other evidence excepting another circumstances to which we shall presently refer to connect the accused with the murder of his mother. The Appellant cannot be .convicted merely on suspicion. Circumstantial evidence relied on by the prosecution is the recovery of the weapon of offence at the instance of the accused. According to the evidence of P.W. 2 the accused told in presence of Police officer and the persons present that "he would point out the dagger which was kept concealed by him". Then he says, "the accused took us inside the room and in our presence took out the dagger". The accused also pointed out a brinjal and disclosed that after the murder of his mother with the dagger, he washed the blood on the dagger after peeling the brinjal. P.W. 11 who was declared hostile stated that Barababu showed him dagger and told that the accused pointed out his dagger. Daroga Babu also showed him brinjal i.e. one cut brinjal.

The Investigating Officer, P.W. 12, in his deposition said that

the accused took us in the bed-room of the house and pointed out the dagger which was kept under the wooden cot in the room and stated that- he committed the murder of his mother with that dagger. The accused also identified and pointed out one cut brinjal stating that he cut the brinjal in order to remove the blood stain on the dagger.

The weapon said to have been recovered along with the brinjal and not been sent for chemical examination and no blood was detected. This only one circumstance even assuming was proved, could not justify the conclusion that it was the Appellant who murdered his mother. The room in which it was found was shared by his father, brothers and sisters. In a case where the matter is sought to be proved on the circumstantial evidence, motive assumes importance. But the motive which allegedly led the Appellant to murder his mother seems to be highly improbable. Xt-is Well-settled that the circumstantial evidence in order to warrant conviction should be consistent only with the hypothesis of the guilt of the accused, but in the instant case there is no such chain of circumstantial evidence.

On the aforesaid facts and circumstances, we are of the view that the prosecution has failed, to prove the charge against the accused beyond any reasonable doubt.

There is another aspect of this matter. Admittedly, the Appellant was a minor at the date of the commission of the offence. Learned Sessions Judge purported to hold a trial and not''an enquiry in accordance with the previsions of the West Bengal Children Act, 1959. Even it was an enquiry as the learned Judge thought it to be: within the meaning of the West Bengal Children Act, he after having found the juvenile delinquent guilty of the offence u/s 302 of the Indian Penal Code imposed life imprisonment on him. The question is, even assuming that the charge against the Appellant has been proved beyond reasonable doubt, whether the Appellant being a minor at the date of the commission of the offence could be sentenced to life imprisonment. The procedure of enquiry in a case where the accused is a minor on the date of the commission of the offence has been prescribed under the West Bengal Children Act, 1959. A question arose whether the proviso of Section 27 of the Code of Criminal Procedure would exclude the operation of West Bengal Children Act, 1959. This question has been considered by the Division Bench of this Court in Debesh Bhattaharjee v. The State 86 C.W.N. 581 (DB) where it was held that notwithstanding Section 27 of the Code of Criminal Procedure, West Bengal Children Act will apply if the requirements of the said Act are fulfilled.

Reference may also be made to the decision of the Supreme Court in the case of Raghbir Vs. State of Haryana, In that case the question that fell for consideration was whether a person under 26 years of age being an accused of an offence u/s 302 of the Indian Penal Code can get benefit of Haryana Children Act, 1974. There one of the accused was a minor. Nonetheless he was convicted and sentenced by the Sessions Judge. Appeal was dismissed by the High Court. The matter was taken to the Supreme Court. The Supreme Court after considering Haryana Children Act, 1974, held that the purpose of the Haryana Legislature as well as of the Parliament in enacting the Haryana Children Act ajid the Central Act respectively was to give separate treatment, to delinquent children in trial, conviction and punishment for offences including offence punishable with death or imprisonment for life. Section 27 of the Code of Criminal Procedure is not a specific provision to the contrary

within the meaning of Section 5 of the Code; the intention of Parliament was not to exclude the trial or delinquent children for offences punishable with death or imprisonment for life, inasmuch as Section 27 does not contain any expression to the effect notwithstanding anything contained in any Children Act passed by any State Legislature.

Parliament certainly was not unaware of the existence of the Haryana Children Act coming into force a month earlier or the Central Children Act coming into force nearly fourteen years earlier. What Section 27 contemplates is that a child under the age of 16 years may be tried by a Chief Judicial Magistrate or any Court specially empowered under the Children Act, 1960. It is an enabling provision, and has not affected the Haryana Children Act in the trial of delinquent children for offence punishable with death or imprisonment for life. The Supreme Court accordingly set aside the conviction and sentence imposed upon the Appellant and quash the entire trial of the Appellant, and directed that the Appellant should be dealt with in accordance with the provisions of the Haryana Children Act.

In the case of Dilip Saha v. State of West Bengal 1978 Cri.L.J. 88 (F.B.) the Full Bench of this Court considered the scope of West Bengal Children Act. The Full Bench observed as follows:

Section 2(h) of the Act defines a "Juvenile Delinquent". He is a child who has been found to have committed an offence. The word "child" has also been defined in Section 2(d). He is a person who has not attained the age of 18 years. These two definitions seem to suggest that the date of the commission of the offence is of paramount importance for the purpose of the West Bengal Children Act, 1959. This is a Special Act which provides, amongst others, for procedure for Irial and the venue of trial of a juvenile delinquent. The operation of the general law is excluded in such cases.

Not only does this Act require a special procedure for enquiry in the case of a juvenile delinquent, it also confers on a juvenile delinquent certain rights not enjoyed by an adult. For instance, Section 22 provides that a child who has been arrested or detained on a charge for any offence whether bailable or not may be released on bail with or without surety unless there was, reasonable grounds to believe that his release is likely to bring danger or defeat the ends of justice. Section 24 provides that no juvenile delinquent shall be sentenced to death. It also provides that no juvenile delinquent shall be sentenced to imprisonment or committed to prison in default of payment of fine or in default of furnishing security unless of course the Court is satisfied that the offence which the juvenile delinquent is charged with is of a serious nature or that he is so untruely or of so deprived a character that he is not a fit person to be sent to a reformatory or borstal school. In that case the Court may sentence him to imprisonment. Section 27 provides that no proceeding shall be instituted and no order shall be passed against a child under the provisions of Section 107 and other similar provisions of the Code of Criminal Procedure. Section 49 provides that a conviction of a child shall not be regarded as a disqualification attaching to conviction for an offence;

These provisions of the 1959 Act indicate that the Legislature wanted to place juvenile delinquents on a different footing. They were not to be apprehended and tried in .the same manner as adult offenders, The Legislature's intention was to make certain beneficial provisions for juvenile delinquents. These beneficial provisions are rights vested in a juvenile delinquent on the day the offence is committed. He cannot be denied of them by reason of the fact that at the time of actual trial he has become an adult within the meaning of Section 2(a) which defines an adult. An "adult" means a person who is not less than 18 years of age.

In this connection we may refer to the provisions of Section 3 of the 1959 Act which, it seems to us, make the intention of the Legislature fairly clear. It provides:

notwithstanding anything to the contrary contained in this Act, if during the course of any proceeding under this Act a child attains the-age of 18 years the proceeding may be continued and orders may be made under this Act in respect of him as if he was a child.

Although Section 3 speaks about a proceeding under .the 1959 Act, it reflects to some extent the mind of the Legislature. That intention clearly is that if on the date of the commission of offence a person in a "child" and is brought before the Court for tiia1 under the provisions of the 1959 Act, his trial would continue in accordance with the said provisions even after he has attained the age of 18. In other words, the attainment of the age of 18 is no bar to trial of a juvenile delinquent under the provisions of the 1959 Act.

Thereafter the Court proceeded to hold:

If, therefore, at the time of the commission of the offence a child cannot be sentenced to death or ordinarily imprisoned in view of Section 24 of the West Bengal Children Act, 1959, he cannot be subjected to a greater penalty at the time of his trial even if he becomes an adult at the time of trial.

It may be argued that when a child has become an adult at the time of trial, his trial may proceed in accordance with provisions of general law; but in awarding sentence the Court would take into account the provisions of Section 24 of the 1959 Act. But the argument would lead to anomalies. A recourse to Section 24 can be made only if a due enquiry is held in accordance with the provisions of the West Bengal Children Act, 1959.

The Supreme Court had the occasion to consider the provisions of the West Bengal Children Act, 1959, in Gopinath Ghosh Vs. The State of West Bengal, There the Supreme Court observed as follows:

Section 2(d) of the Act defines "child" to mean a person who has not attained the age of eighteen years. Section 2(h) defines "juvenile delinquent" to mean a child who has been found to have committed an offence. Fascioculus of sections in Chapter III bears the heading "juvenile delinquents". Section 22 provides for granting bail to a child pending inquiry. Section 23 casts an obligation on the Officer-in-Charge of the Police Station to which a child is brought after arrest to forthwith inform the parent or guardian of the child, if he can be found of such arrest and shall cause to be summoned to the Court before which the child will appear. Section 24 starts with a non obstante clause which takes away the jurisdiction of the Court to impose sentence of death on a juvenile delinquent as well as the power to impose sentence of imprisonment or commitment to prison in default of payment of fine or in default of furnishing security on a juvenile delinquent. There is a proviso to Sub-clause (2) of Section 24 which would enable the Court to impose a sentence of imprisonment on a juvenile delinquent, if the conditions therein prescribed are satisfied with an obligation on the Court to report the case to the State Government and direct the juevenile delinquent to be detained in such custody as it may think fit. Section 25 provides for inquiry by Court regarding juvenile delinquents. It reads as under:

Where a child having been charged with an offence appears or is produced before a Court, the Court shall hold the inquiry in accordance with the provisions in the Code of Criminal Procedure, 1898, for the trial of a summons case.

Section 26 confers power on the Court enabling it to pass orders regarding juvenile delinquents as therein mentioned.

Section- 4 confers power on the State Government to establish Juvenile Courts by a Notification to be issued in that behalf. Section 5 provides that the powers conferred on Courts by the Act shall be exercised amongst others where a Juvenile Court is not established by a Court of Session. It is not clear whether Juvenile Court has been established for the area comprised in district Nadia. Section 6 provides that when a child is brought before a Magistrate or Court not empowered to pass an order under the Act, such Magistrate or Court shall forward the child to the nearest Juvenile Court or other Court or Magistrate having jurisdiction.

It clearly transpires from a combined reading of the sections hereinbefore extracted that where a juvenile delinquent is arrested, he/she has to be produced before a Juvenile Court and if no Juvenile Court is established for the area, amongst others, the Court of Session will have powers of Juvenile Court. Such a juvenile delinquent ordinarily has to be released on bail irrespective of the nature of the offence alleged to have been committed unless it is shown that there appears reasonable grounds for believing that the release is likely to bring him under the influence of any criminal or expose him to moral danger or defeat the ends of justice. Section 25 forbids any trial of a juvenile delinquent and only an inquiry can be held in accordance with the provisions of the Code of Criminal Procedure for the trial of a summons .case and the bar of Section 24 which has been given an overriding effect as it opens with the non obstante clause takes away the power of the Court to impose a sentence of imprisonlent unless the case falls under the proviso.

Then the Supreme Court proceeded to hold:

The report of the learned Additional Sessions Judge is self evident. It is unquestionably established on the unassailable evidence that on August 19, 1974, the. date of the offence, Appellant was aged between 16 and 17 years. He was, therefore, a juvenile delinquent. Obviously, the learned Megistrate could not have committed his case to the Court of Session. Only an inquiry could have been held against him as provided in Section 25 of the Act and unless the case of the Appellant falls within the proviso of Section 24(2), he could not be sentenced to suffer imprisonment. Therefore, the entire trial of the Appellant is without jurisdiction and vitiated. Therefore, the conviction of the Appellant for having committed an offence u/s 302 IPC and sentence for imprisonment for life imposed by the learned Additional Sessions Judge and confirmed by the High Court are unsustainable and they must be set aside.

Having regard to the principles laid down by this Court and the Supreme Court, it is clear that Section 25 forbids trial of juvenile delinquent. Section 24 takes away the power of the Court to impose sentence of imprisonment unless the case falls under the proviso. The proviso to Section 24(2) reads as follows:

Where the Court is satisfied that the offence committed by the juvenile delinquent is of so serious nature or that he is so unruly or of so depraved a character that he is not a fit person to be sent to a reformatory or borstal school, the Court may sentence him to imprisonment for a period not exceeding the maximum period of imprisonment to which he could have been sentenced for the offence committed and the Court shall report the case to the State Government and direct the juvenile delinquent to be detained in such custody as it may think fit;

It is no doubt true that having regard to the nature of the offence the Court may sentence a juvenile delinquent to imprisonment not exceeding the maximum period of imprisonment to which he could have been sentenced for the offence committed. This obviously gives the Court power to impose sentence of imprisonment depending on the facts and circumstances of the case, but in that case there is an obligation on the part of the Court to refer the matter to the State Government and direct juvenile delinquent to be detained in such custody as it may think fit. Sub-clause (3) of Section 24 reads as under:

On receipt of a report from the Court under Clause (2) the State Government may make such arrangement in respect of such juvenile delinquent as it deems proper and may at any time order him to be released from custody on such conditions, if any, as the State Government may think fit to impose.

Section 26 enumerates the orders that may be passed against juvenile delinquent. It says where the Court is satisfied on enquiry that a child has committed an offence, then notwithstanding any provision to the contrary relating to the punishment for such offence contained in any law for time being in force, the Court may pass appropriate order. Under the second proviso to Section 26(l)(a) the term of detention of juvenile delinquents, in any event, cannot be extended beyond the age of 21 years. In our view, the object of the Children Act is to reform the juvenile delinquent and not to sentence him to imprisonment, that too for life. The Court has the power to deal him in such a manner which would be in conformity with the purpose of the Children Act. During the pendency of this proceeding, the accused has completed the age of 21 years and, accordingly, he could not be detained any further under the Children Act. If we were of the opinion that the charge against the delinquent has been proved beyond reasonable doubt, even then we would have, considering the object of the Children Act, released him or reduced the sentence to the term already suffered as was done by the Supreme Court in Dharam Pal and Others Vs. The State of U.P., .

For the foregoing reasons the appeal is allowed. The order of sentence and conviction is set aside. The Appellant shall be set at liberty forthwith, if not required in connection with any other case.

Manabendra Nath Roy, J.: I agree.