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Criminal Appeal No. 47 of 1973, decided on 27th April 1976.

Ss. 302 & 325 read with Bombay Children Act (XIII of 1924), Ss. 3(a), 22, 27 & 32‑Juvenile offender‑Solitary incident of giving one blow with stick resulting in death of deceased‑Cannot lead to inference of accused being unruly or of deprived character‑Trial Court not applying correct principle for conclusion with regard t unruly nature of accused‑Such accused, having already crossed age of 18 years, held, cannot be kept in prison or detained in Juvenile Jail or in Reformatory School. [Juvenile offender].

Dino Ramzan v. The Crown I L R 1944 Kar. 272 ; Allah Warayo v. The State 1968 P Cr. L J 466 ; Usman v. The State P L D 1961 Kar. 303 and Sheikh Muhammad Yousuf v. The State 1971 P Cr. L 1736 ref.

Imam Ali Kazi for Appellant.

Manzoor Hussain for the State.

Date of hearing : 2nd March 1976.

The appellant who was convicted by the Additional Sessions Judge, Sukkur vide his judgment dated 16‑12‑1972 under section 325, P. P. C. and sentenced to 4 years' rigorous imprisonment, has assailed that judgment and his conviction by filing this appeal. He was granted bail by order of this Court dated 21‑2‑1973. In that order the Assistant Advocate‑General, in raising no objection to the grant of bail had submitted that the matter be heard at an early date because if it was heard after the appellant crossed the age of 18 years the sentence might become infructuous. Without expressing any opinion on that submission the Court had ordered that this appeal be heard during the year 1973.

2. Mr. Imam Ali Kazi the learned counsel for the appellant has raised no other contention except one which is with regard to the conclusion of the Additional Sessions Judge in his judgment, and is in these terms

"In the light of my discussion on points 1 and 2 as above, I hold that accused Rajal Mal is proved guilty of offence punishable under sec tion 325, P. P. C. and in view of proviso to section 22 of the Bombay Children Act, 1924 accused was above 14 years of age at the time of the commission of the offence and was clearly of unruly nature as for one simple injury caused to his cousin by the deceased he went to the shop of the deceased in centre of the Bazar and in presence of so many persons abused and caused fatal blow to the deceased and hence he deserves to be convicted to the prison."

3. The learned counsel contends that the inference about unruly nature of the appellant was wrongly drawn from the act for which he had been tried because such an inference could legally be drawn only if there was evidence on record other than the offence itself. According to him in no case could the offence to which the appellant was convicted, be considered also as the basis of unruly nature, as had been done.

4. In order to appreciate the full import of the contention raised it would be convenient to enumerate the facts of the case in brief.

On 10‑2‑1968 witness Kewal Ram son of Radomal gave information at Madeji Police outpost, which was entered by Head Constable Pir Bux in the Roznamcha at 2 p. m. The allegations were that he and his brother Rochal mal were sitting at the shop when at 9 O' clock in the morning appellant came armed with a laths. He abused Rochalmal and asked him as to why he had quarrelled with his cousin Gurmukh and give blows to him. He also inflicted lathi blow on Rochalmal which fell on his head. Kewalram, Gut Mukb, Chuttal and Ghulam Muhammad shouted at the appellant whereupon the appellant ran away to his house. Rochalmal was taken to Amir Ali Shah, B. D. Member and on his direction a complaint was lodged with the police. A letter was given for medical treatment to the injured. The medical officer of Madeji Dispensary directed the injured to be taken to Sukkur hospital where the injured died on the next day during the night.

Thereafter Gurmukh witness went to inform the Police and the First Report was recorded on 12‑2‑1968 at 2 p. m. for an offence under section 302, P. P.C.

5. Dr. Ali Jan Assistant Medical Officer, Civil Hospital, Sukkur, who had examined injured Rochalmal on 10‑2‑1968 and X‑rayed the injury on his head stated that fracture of the frontal bone on the left side of the skull was disclosed. On 11‑2‑1968 an operation had also been performed for removing the blood clots from the skull but the injured died at 8 p. m. on 12‑2‑1968. According to the Doctor the injury was not sufficient in the ordinary course of nature to cause the death of the person and in his cross -examination he added that "the injury could be caused by a hard blunt fall from the staircase ".

6. The appellant denied the causing of the injury to the deceased, so also the allegation of a previous fight between the deceased and his cousin or even securing of a lathi from his house. The laths secured according to him was only a fuel stick. About the prosecution witnesses he stated that they were interested. He further pleaded that he was the only son of his father and was a child under 18 years at the time of the alleged incident.

7. It appears that the plea of age being below 16 years at the time of the commission of the offence had been raised at the very commencement of the trial and in this connection the learned counsel for the appellant referred to the order of the Sessions Judge, Sukkur dated 13‑10‑1970 in which after considering the medical certificate and the birth and death register showing the appellant's birth date as 25‑5‑1952, he had held that the appellant was below 16 years of age at the time of the commission of the offence.

8. Mr. Imam Ali Kazi learned counsel for the appellant referred to section 3 (a) of the Bombay Children Act, 1924, wherein a child has been defined to mean a person under the age of 16 years and then to section 22 of the same Act which reads as follows :‑

"22. Notwithstanding anything to the contrary contained in any law no child shall be sentenced to death or transportation or committed to prison:

Provided that a child who is 14 years of age or upwards may be commit ted to a prison where the Court certifies that he is of so unruly or of so depraved a character that he is not a fit person to be sent to a certi fied school ; and that none of the other methods in which the case may legally be dealt with is suitable."

Without contesting the conviction of the appellant under section 325, P. P. C. the only attack of the learned counsel was that the proviso to section 22 of the Bombay Children Act quoted above had not been properly construed by the Additional Sessions Judge, Sukkur, in giving the finding about the unruly nature of the appellant upon the basis of the commission of the offence for which he tried the appellant. The Additional Sessions Judge had stated that in view of the proviso to section 22, the accused was above 14 years of age at the time of the commission of the offence and was clearly of an unruly nature because for one simple injury caused to his cousin by the deceased he had gone to the shop of the deceased in centre of the Bazar and in presence of so many persons abused and caused fatal blow to the deceased and hence he deserved to be committed to the prison.

9. In the case of Dino Ramzan v. The Crown (I L R 1944 Kar 272),. Their Lordships of the then Sind Chief Court, Lobo and Tayabji, JJ. examined the very question which has been raised in this case by the learned counsel for the appellant. It was observed in that case :‑

"One passage, however, in the language of the learned Judge now before us dealing with this question of sentences calls for comment. The learned Judge states

I think that the conviction for murder by itself shows that the accused is so unruly that he is not a fit person to be sent either to a certified school or to a reformatory school.

We do not think that, as a general rule, apart from this particular case, this reasoning of learned Judge is sound. It may well be that the circumstances of a particular case are such as to show that youthful offender was fourteen years of age or upwards and of so unruly or depraved a character as to be unfit to be sent to a certified or a reforma tory school. But in the majority of cases it appears to us that such a finding must be based upon inquiry into the antecedents of the child in question.

Considering the circumstances in the present case, we do not think that without further inquiry into the antecedents of the appellant Muham mad the learned Judge was justified in finding merely from the effect that Muhammad had joined his uncles in a murderous assault upon a man that he was so unruly or of so depraved a character as to be unfit to be sent to a certified or reformatory school. In view of our decision, however, that a sentence of imprisonment cannot be legally passed on a youthful offender for the offence of murder, this question becomes purely academic."

10. The above case was considered by a Division Bench of this Court In the case of Allah Warayo v. The State (1968 P Cr. L J 466) the principle stated in the observation quoted above was not followed as the facts in that case were considered to be distinguishable. The distinction is clear from the observation:‑

"We are also cognizant of the judgment of a Bench of the former Chief Court of Sind in Dino Ramzan and others v. The Crown where it was stated that‑

the conviction of a child for murder does not by itself show that the child was of so unruly or depraved a character as to be unfit to be sent to a certified or a reformatory school, and generally such a finding must be based on an enquiry into the antecedents of the child."

Now, the appellant, when he committed this offence in October 1961 was clearly over fourteen years of age.

The offence itself was so dastardly and so gruesome that it leaves no doubt in our mind that the appellant is of a depraved character. To entice away a young and defenceless girl of 6 years of age on the pretext of buying her sweets but actually for the purpose of removing her gold balls and then without any compunction to throttle such a young child to death is certainly the conduct of a depraved character. We have closely applied our mind to the facts of the case reported in Dino Ramzan and others v. The Crown and to the facts of the present case and we are firmly of the view that the facts in the instant case are clearly distinguishable from the facts of the reported case."

11. In the present case, however, the facts of the case are not disputed nor the conviction of the appellant. The dispute being only about the unruly and depravity of character, the same obviously cannot be deduced from the single act of the appellant in giving a laths blow to the deceased. 'The conviction was also under section 325, P. P. C. although as a result of the blow the deceased had died the next day. Mr. Manzoor Hussain the learned counsel for the State also candidly conceded that in the circumstance of this case the principle laid down in the case of Dino Ramzan should have been followed, and the Additional Sessions Judge should have taken more care in drawing the conclusion regarding unruly nature of the appellant. In big opinion also the evidence on record was not sufficient for such a conclusion. He has referred me to the case of Usman v. The State (P L D 1961 Kar. 303) in which Inamullah, J, as he then was, while considering the import of section 22 of the Bomby Children Act of 1921 observed at page 304 :‑

"It is true that no child can be committed to prison. The applicant is admit tedly a child within the definition of the Bombay Children Act, 1924, inasmuch as he was convicted. The proviso to the section makes it clear that under certain circumstances a child can be committed to prison when the Court certifies that he is so unruly or of so depra ved a character that he is not fit person to be sent to a certified school. In this case the learned Magistrate observed as under

It is evident from the facts stated above in my inquiry that the offen der has become habitual and needs reform, but he is almost or already 16 years of age and I sentence him to imprisonment in the Central Jail for a period of 2 years simple imprisonment.'

The facts mentioned by the learned Magistrate in her judgment disclosed that the applicant had been in the Remand Home on 15 occasions for different offences mostly for thefts. One thing is clear that if the applicant is sent to the Remand Home it is very likely that he may affect the character of other inmates of the Remand Home. He is before me and appears to be quite intelligent. He is likely by his intelligence to influence the other children in the Remand Home to his own ways of behaviour. The learned Magistrate, however, has not mentioned that the applicant cannot be dealt with legally in any other suitable way."

In his conclusion inspite of the observations of the trial Court and the fact that the applicant in that case had been sent to the Remand Home a number of times before the learned Judge concluded

"As I have already observed interest of justice requires that the applicant should be given one more chance to become a useful citizen. I would, therefore order that the applicant should be committed to the care of big parent, guardian or any other adult relative. In case no relative is willing to come forward to accept responsibility of the applicant's good behaviour, any other person who is willing to take care of the applicant should execute a bond for the responsibility for the good behaviour of the applicant in the sum of Rs. 5,000 in this Court. The bail bond of the applicant is cancelled. Whenever any relative of the applicant or some else were to furnish the bond as already ordered for the good behaviour of the applicant, he will be released."

12. In the case of Shaikh Muhammad Yousuf. v. The State (1971 P Cr. L J 736), my learned brother Haleem, J. considered the import of sections 27 and 32 of the Bombay Children Act, and while upholding the conviction of the applicant under sections 302, 325/34, P. P. C. held that the juvenile offender could not be detained even in a certified school beyond the age of 18 years. He, therefore, ordered that the applicant should be set at liberty forthwith if not required in any other case.

13. In the instant case the trial Court had not applied the correct principle for the conclusion with regard to the unruly nature of the appellant His antecedents should have been inquired into as this was a solitary incident of giving one blow with a stick which unfortunately resulted in the death of the deceased. The appellant was on that account not convicted for an offence under section 302, P. P. C. but the conviction was only under 325, P. P. C. As the appellant has by now crossed the age of 18 years he cannot be kept in prison nor it is a fit case for his being detained in Juvenile Jail or in any reformatory school. The learned counsel for the State has conceded that he could not be committed to prison. In these circumstances this appeal is allowed. The applicant is on bail and his bailbonds shall stand cancelled.

S. Q. Appeal allowed.

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