4 July 2022 7:00 AM GMT
The Jammu and Kashmir and Ladakh High Court has made it clear that the presumption of innocence in favour of a juvenile under Section 3(i) of the Juvenile Justice (Care and Protection of Children) Act, 2015 cannot be applied to the adult co-accused in a crime.Justice Sanjay Dhar thus rejected the contention raised by the Petitioners herein (co-accused with the juvenile) that since the...
The Jammu and Kashmir and Ladakh High Court has made it clear that the presumption of innocence in favour of a juvenile under Section 3(i) of the Juvenile Justice (Care and Protection of Children) Act, 2015 cannot be applied to the adult co-accused in a crime.
Justice Sanjay Dhar thus rejected the contention raised by the Petitioners herein (co-accused with the juvenile) that since the main accused, being a juvenile, is to be presumed free of any malafide intent, the petitioners cannot be roped in by invoking the provisions contained in Section 34 of the IPC.
Section 3(i) of the JJ Act provide that any child shall be presumed to be an innocent of any mala fide or criminal intent up to the age of eighteen years.
The juvenile herein was accused of giving a fatal blow to the deceased, following which he and the co-accused (Petitioners herein) were charged under Section 302 IPC read with Section 34 of IPC.
The Petitioners had challenged the charge while contending that since in view of Section 3(i) of JJ Act, juvenile accused has to be presumed innocent of any mala fide or criminal intent, thus if the main accused is to be presumed free of any mala fide intent, the petitioners cannot be roped in by invoking the provisions contained in Section 34 of the IPC.
Disagreeing, the High Court observed,
"The argument advanced by learned senior counsel appearing for the petitioners appears to be misconceived for the reason that presumption under Section 3(i) of the Juvenile Justice (Care and Protection of Children) Act, 2015, is applicable to the case of juvenile accused i.e. Jan Mohammad Changa and not to the cases of other adult accused, who, from the circumstances appearing in the material on record of the case, clearly shared a common intention of launching a murderous attack on the complainant party. The contention of learned senior counsel is, therefore, without any merit."
The Court also refused to grant bail to accused persons in wake of prima facie material available on record of challan.
The order of the Trial Court was challenged on various counts, primarily, for not satisfying the ingredients of Section 302 read with sec 34 of IPC.
The petitioners dubbed the occurrence wherein a man was killed as "sudden fight" and contended petitioners could not be said to have shared a common intention to commit the murder.
The Court delved into the factors that are to be taken into account while framing charges and also the scope of the High Court to interfere with the order vide which the Trial court frames charges against the accused.
Drawing guidance from the Apex Court judgement, Amit Kapoor v. Ramesh Chander and Anr. the court observed at the stage of framing of charges the Trial Court is not required to see the possibility of the final guilt of the accused in the offence but the court has to see, from the material on record, whether the ingredients constituting offences are prima facie made out.
"For this limited purpose, sifting of evidence is permissible but probative value of the material brought on record by the prosecution cannot be gone into at this stage."
The court also clarified, in light of the law laid down by Apex Court, that the scope of High Court to interfere with the order of framing of charges is limited to cases where the court finds no offence is made out or where there is a legal bar to prosecution.
The contention of the petitioners that sec 34 doesn't attract because the deceased person had arrived at the place of occurrence when the scuffle had already commenced was rejected.
The court said it is not necessary that common intention must have developed before reaching the spot of occurrence. The common intention between assailants may develop on reaching the spot. There cannot be any direct evidence but the circumstances prevailing at the time of commission of crime may give sufficient indication as to the intention, the court said.
Contention raised by the counsel for petitioner about contradictions in the statement of witnesses' recorded under section 161 and 164 of Cr.P.C also met rejection vide this observation: "[courts] can not meticulously examine or sift the statements of witnesses recorded during investigation of the case in order to determine the effect of contradictions..."
Court said all the prosecution witnesses have attributed same thing to the Juvenile (who caused death of the deceased) and other accused persons, i.e the Juvenile was driving the tractor and was accompanied by other accused persons who were armed with Lathis.
At the time of framing of charges, the court said, contradictions in the statements of witnesses may not help the case of petitioners.
Case Title : TAJA BEGUM & ORS v UT OF J&K
Citation: 2022 LiveLaw (JKL) 55