1971 P Cr (PLP)

Usman Ghani for the State. Dates of hearing : 26th and 31st August 1970. The applicant has applied to this Court under section 51(3) of the Bombay Children Act (XIII of 1924) for setting aside the order of his conviction dated the 19th of June, 1965 under sections 302, 325 and 30'3 read with section 34, P. P. C, and detention in Juvenile Jail" for a period of 5 years under section 27(1) (d) of the said Act. The applicant was tried for the murder of Kafilur Rehman, causing of grievous injuries to Shabihur Rehman and Laiqur Rehman, and attempt to murder Aqilur Rahman by the Juvenile 6ourt and convicted and detained as above.

2. The applicant, his brother Muhammad Yaqoob and father Dr. Muhammad Bhai and the deceased and his brothers were neighbourers and resided in the same locality. It is alleged that on 21st of July 1966, Aqilur Rahman any his brothers protested to Dr. Muhammad Bhai, the applicant and his brother on their conduct in going into the street in front of their house and dancing and singing obscene songs upon which the applicant and his brother and father quarrelled with them and it was only when the neighbours intervened that the matter was patched up. On 23rd of July 1966 at 9 p.m. it is said that Dr. Muhammad Bhai, the present applicant and his brother, accompanied by four others came armed with sticks and knives to the house of Laiqur Rahman and attacked the deceased Kafilur Rahman and his other brothers; and as a result of the said attack Kalfilur Rahman received knife blows and died in consequence of the injuries caused to him while Aqilur Rahman received simple injuries, caused both by a knife and a blunt weapon; and Shabihur Rahman and Laiqur Rahman received grievous injuries caused by stick blows.

3. The prosecution has examined Laiqur Rahman Aqidur Rahman, Shabihur Rahman, brothers inter se, Zulfikar Akbar, Azizur Rahman, Abdul Monem and Abdul Hamid besides others to establish the participation of the applicant. Each of the three brothers namely, Laiqur Rahman, Aqidur Rahman and Shabihur Rahman have implicated the applicant. His name transpires in the F. I. R. Besides. independent witnesses namely, Zulfikar Akbar, Azizur Rahman and Abdul Monem have also established his presence with a hockey stick at the place of incident. Abdul tumid, another independent witness had seen him running with Dr. Muhammad Bhai and others. There can therefore, be no doubt as to his presence and participation in the crime. The learned counsel for the applicant invited my attention to the fact that though his name appears in the F. I. R. yet he is shown to be armed with a knife, but the witnesses brave testified that he was armed with a stick, and this variation according to the learned counsel affects their reliability. Again he invited my attention to the testimony of Aqidur Rahman wherein it is stated that the applicant came armed with a stick with one other person after the arrival of Dr. Muhammad Bhai and his son Yaqoob, and in the view of the learned counsel this circum stance negatived pre-concert. The first ground of attack has no substance as the defence did not put the contradiction to Laiqur Rahman and accordingly this variation cannot be relied on for attacking the credibility of the witnesses. The second ground of attack is also of no value for common intention can develop at the spot. In the evidence it is clear that he participated in the attack and caused stick blows to Laiqur Rahman and came at the spot at the instigation of his father Dr. Muhammad Bhai. There can therefore, be no doubt as to the sharing of the common intention. No other argument was advanced to cast doubt either on the prosecution version or as to the participation of the applicant. The credibility of the independent witnesses was also not attacked on any ground. Under the circumstances I am of the view that the prosecution has established its case beyond doubt. The injuries on Aqidur Rahman are simple and in the absence of any evidence to suggest a case of attempt to murder, the prosecution has failed to establish this charge against the applicant. However, the commission of leniar offences is indicated and in view of the graver charges having been established against him it will be futile to alter his conviction for minor offences. I would accordingly uphold his conviction under sections 302/325/34, P. P. C.

4. Lastly, the learned counsel contended that in view of section 32 of the Act, Juvenile Court could not order his detention for a period of five years extending beyond the age of 18 years. Section 32 reads as under :‑ "The period for which a child or youthful offender is to be detained in a certified School shall be specified in the order in pursuance of which he is sent there and shall be such period not being less than two years in the case of a youthful offender who at the date of the order is over the age of fifteen years and three years in the case of other youthful offenders as to the Court may seem proper for his teaching and training but not in any case extending beyond the time when he will, in the opinion of the Court, attain the age of eighteen years." The learned counsel laid emphasis on the words "but not in any case extending beyond the time when he will, in the opinion of the Court, attain the age of 18 years in support of his conten tion. Though the applicant was examined as to his age by the doctor yet the doctor himself was not examined in Court and accordingly his age was not established on record. The Court while ordering his detention omitted to notice the relevant provision; and it was only when this contention was raised in this Court that the doctor was examined here at the instance of the applicant. According to Dr. Abdul Ghaffar, he examined the applicant on the 1st of December 1966 about six months after the present incident and on that date his age was estimated as 16 years and on the basis of that estimation he opined his age on the 19th of June 1968 as 17 years. The State counsel did .not cross‑examine him to dispute the correctness of his age. In the light of the above contention the only period for which the detention could have been ordered was six months from the date of the order viz. 19th June 1968. The learned counsel for the State has not challenged the applicability of this section to detention ordered under section 27(i) (d) of the Bombay Children Act and he fairly conceded that this provision would in terms apply to an order of detention passed under section 27(i) (d). My own examination of this provision leads me to the same conclusion and accordingly, while upholding his conviction, I would set aside the order of the detention beyond the period of six months as from 19th of June 1968 and order that the applicant should be set at liberty forthwith if not required in any other case. To this extent the revision application is accepted. Order accordingly.