{"id":64956,"date":"2003-01-27T00:00:00","date_gmt":"2003-01-26T18:30:00","guid":{"rendered":"https:\/\/www.legalindia.com\/judgments\/chandran-alias-kuttipayan-vs-state-rep-by-on-27-january-2003"},"modified":"2017-10-07T01:41:56","modified_gmt":"2017-10-06T20:11:56","slug":"chandran-alias-kuttipayan-vs-state-rep-by-on-27-january-2003","status":"publish","type":"post","link":"https:\/\/www.legalindia.com\/judgments\/chandran-alias-kuttipayan-vs-state-rep-by-on-27-january-2003","title":{"rendered":"Chandran Alias Kuttipayan vs State Rep. By on 27 January, 2003"},"content":{"rendered":"
Madras High Court<\/div>\n
Chandran Alias Kuttipayan vs State Rep. By on 27 January, 2003<\/div>\n
       \n\n  \n\n  \n\n \n \n IN THE HIGH COURT OF JUDICATURE AT MADRAS\n\nDATED: 27\/01\/2003\n\nCORAM\n\nTHE HONOURABLE MR JUSTICE N. DHINAKAR\nand\nTHE HONOURABLE MR JUSTICE R.BALASUBRAMANIAN\n\nCriminal Appeal No.165 of 1999\n\n\nChandran alias Kuttipayan              ... Appellant.\n\n-Vs-\n\nState rep. by\nInspector of Police,\nKondalampatti,\nSalem District.                         ... Respondent\n\n\nPrayer:  Appeal against the  judgment  passed  by  the  learned  I  Additional\nDistrict and Sessions Judge -cum- Chief Judicial Magistrate, Salem, in S.C.No.\n155 of 1997 dated:  17.2.1999.\n\n!For Appellant :  Mr.K.Doraisamy, S.C., for\n                M\/s.Muthumani Doraisamy\n                Kandavadivel Doraisamy\n\n^For Respondent :  Mr.I.Subramanian\n                Public Prosecutor.\n\n:JUDGMENT\n<\/pre>\n
(Judgment of the Court was delivered by N.  DHINAKAR, J)<\/p>\n
        The accused appeals.\n<\/p>\n
        2.   The  sole  appellant, who hereinafter will be referred to as “the
\naccused”, challenges his conviction and sentence.  He  was  tried  before  the
\nlearned  I  Additional  District  and  Sessions  Judge  -cum-  Chief  Judicial
\nMagistrate, Salem, in S.C.NO.  155 of 1997.  The  allegation  against  him  is
\nthat at  9.30 a.m.  on 20.6.1996 he cut Balajothi on various parts of the body
\nand as a result of the said cut injuries, the said Balajothi breathed her last
\nat 11.40 a.m.  at Government Mohan Kumaramangalam Hospital, Salem,  where  she
\nwas taken for treatment for the said injuries.  The learned Sessions Judge, on
\nconvicting  him,  sentenced  him  to  imprisonment for life for the offence of
\nmurder.  Hence, the appeal.\n<\/p>\n
        3.  Shorn of unnecessary details, the facts necessary  to  dispose  of
\nthe appeal, can be briefly summarised as follows:-\n<\/p>\n
        P.W.1  is  the  stepbrother  of the deceased and P.W.3 is the maternal
\nuncle of P.W.1 and the deceased.  They were residents of Karungalkadu and  the
\nfather of the deceased is an agriculturist.  The mother of P.W.1 died while he
\nwas  young  and  after  the  death  of  his  mother,  P.W.1’s  father  married
\nDhanalakshmi as his second wi fe.  Balajothi was born to the said Dhanalakshmi
\nand she was aged about 16 years during the relevant period.    In  the  house,
\nalong  with P.W.1, his parents, Balajothi, the deceased, and the wife of P.W.1
\nwere living.  They were also owning two houses and some landed property.   The
\naccused,  a  resident  of  Thachalkadu,  which  was  at  a  distance of half a
\nkilometer, and the deceased were studying at Mallur Government  School.    The
\naccused  was  friendly towards the deceased and the fact came to the knowledge
\nof the elders.  P.W.1 advised his sister not to move with  the  accused  in  a
\nfriendly  manner;  but she continued her friendship with the deceased, forcing
\nthe elders to stop the education of the deceased.  This was two years prior to
\nthe date of incident; but the accused was visiting the  deceased  very  often.
\nThis  was  seen  by  P.W.1  and  he  advised  his  sister  not to continue her
\nrelationship with the accused and the family  members  also  decided  to  give
\nBalajothi in  marriage  to  a person at Salem.  The marriage was, accordingly,
\nfixed and the invitation cards were also printed.  On the  date  of  incident,
\nthe  parents of the deceased were away distributing invitation cards and P.W.1
\nwas alone standing in front of the tea shop of  P.W.2  along  with  his  wife.
\nThis was  at  9.30  a.m.  They were discussing about the impending marriage in
\nthe house.  The deceased was sitting on the door steps of their  house,  which
\nwas at  a  distance  of 50 feet from the tea shop.  The accused, at that time,
\nwent to the deceased and by telling her that she has been evading to marry him
\nfor about two years and that she will not be allowed to live and marry another
\nperson, removed a knife, which he kept concealed  in  the  shirt  and  started
\ncutting her.    He inflicted several cuts and her left wrist was also severed.
\nAfter indiscriminately cutting Balajothi, he ran away from the place.  P.Ws.1,
\n2 and others rushed towards the house asking the accused not to cut  her;  but
\nhe threatened  them  and went away.  When they went near Balajothi, they found
\nher in a pool of blood; but unconscious.  P.W.3, Jagannathan, also reached the
\nplace and he stopped a  van,  which  was  passing  by  that  side,  in  which,
\nBalajothi  was  placed and removed to Government Mohan Kumaramangalam Hospital
\nand produced before P.W.9, the Casualty Medical Officer at 9.30  a.m.    P.W.9
\nexamined Balajothi and found the following injuries:-\n<\/p>\n
1.Lacerated injury 4 x 2 x 1 cm over the tip of the nose extending to lip.\n<\/p>\n
2.Lacerated injury 7 x 2 x 1 cm over left side cheek.\n<\/p>\n
3.Lacerated injury 6 x 2 x 4 cm over the front of the neck.\n<\/p>\n
4.Traumatic amputation at left wrist level with loss of left hand.\n<\/p>\n
5.Lacerated injury 8 x 4 x bone deep with exposing of bones and muscles on the
\nleft upper arm.\n<\/p>\n
6.Lacerated injury 6 x 2 x 1 cm over right side back.\n<\/p>\n
The doctor  issued  Ex.P.14, the copy of the accident register.  Balajothi was
\nadmitted as an inpatient and while she was in the ward, she breathed her  last
\nat 11.40 a.m.   An intimation, Ex.P.15, was sent by P.W.10, the doctor.  After
\nthe death of Balajothi, P.W.1 left the hospital, reached Mallur Police Station
\nand gave a complaint regarding the incident to  P.W.12,  the  Head  Constable.
\nP.W.12 reduced the said complaint into writing.  The said complaint is Ex.P.1.
\nP.W.12 registered  a case in Crime No.  1017 of 1996 against the accused under
\nSection 302 IPC.  by preparing express reports.  Ex.P.16  is  a  copy  of  the
\nprinted first  information report.  The express reports were despatched to the
\nhigher officials.\n<\/p>\n
        4.  P.W.14, the Inspector of Police, Irumbalai Police Station, on  the
\ndirections  of  the  Deputy Superintendent of Police, took up investigation in
\nthe crime and reached Mallur Police Station at 1.30 p.m., where he was  handed
\nover a  copy  of  the  printed  first  information report.  He left the police
\nstation along with a Police Constable and reached the scene of  occurrence  at
\n2.00 p.m.    At  the  scene of occurrence Ex.P.2, the observation mahazar, was
\nprepared and a rough sketch, Ex.P.17, was also drawn.  The scene of occurrence
\nwas caused to be photographed.  He seized the blood-stained earth  and  sample
\nearth under  a  mahazar attested by witnesses.  He, thereafter, left the scene
\nof occurrence and reached Government Mohan Kumaramangalam Hospital, Salem,  at
\n3.30 p.m.  and in the presence of witnesses conducted inquest over the body of
\nBalajothi and at the time of inquest, he questioned P.  Ws.2, 3 and others and
\ntheir statements  were  recorded.  After the inquest, a requisition was issued
\nto the doctor for conducting autopsy.\n<\/p>\n
        5.  On receipt of the requisition, P.W.7, the  Professor  of  Forensic
\nMedicine,  Government  Mohan  Kumaramangalam  Medical College Hospital, Salem,
\nconducted autopsy on the body of Balajothi and found the following injuries:-\n<\/p>\n
1.Two cut injuries presenting as a single injury on the outer  margin  in  “W”
\nshape  5  cm  x  10  cm in the aspect of lower 1\/3rd of left arm, upper margin
\nsharp.\n<\/p>\n
2.Traumatic amputation of left hand present at the level of  wrist.    Margins
\nsharp.\n<\/p>\n
3.An  oblique gaping cut injury present on the left side of the nose extending
\non to right side of upper lip.  Margins sharp, angle acute.    Cut  injury  of
\nnasal cartilage present 5 cm x 0.5 cm x 0.5 cm.\n<\/p>\n
4.A  transverse  gaping  cut injury present on the lower part of left cheek, 5
\ncms x = cm x muscle deep extending forwards as a superficial incised wound  up
\nto the angle of the mouth 5 cms in length and backwards up to the left side of
\nneck 9 cms in length.\n<\/p>\n
5.An  oblique gaping cut injury present on the left side of neck on its middle
\n3 cms x 1 cm x 2 cms cut injury of blood vessels present with fracture  of  C4
\nvertebra underneath.\n<\/p>\n
6.Two  superficial  cut  injuries present 3 cms below the chin, 3 cms x 1 cm x
\n0.5 cm and 3.5 cms x 0.5 cm x 0.5 cm situated 1 cm apart.\n<\/p>\n
7.Another oblique gaping stab injury present on the right scapular  region  of
\nback,  7  cms  x 3 cms x cavity deep, through which right lung is seen, margin
\nsharp and angles acute passing through 5th intercostal space.  Cut  injury  of
\nright  lung  on  posterior  aspect of lower lobe present, 3 cms x 1 cm x 1 cm.
\nRight pleural cavity contain 100 cc fluid blood.\n<\/p>\n
The doctor issued Ex.P.7, the post-mortem certificate, with his  opinion  that
\nthe deceased died on account of shock and haemorrhage.\n<\/p>\n
        6.   P.W.14,  continuing  with  his  investigation,  searched  for the
\naccused and arrested him at about 6.30 p.m.  on 26.6.1996       and   in   the
\npresence of  witnesses,  he  was questioned.  The accused gave a statement and
\nthe admissible portion is Ex.P.4.  In pursuance of the admissible portion,  he
\ntook  the police party to a forest area and produced M.O.1, a veecharuval, and
\nthe same  was  seized  under  a  mahazar.    The  officer  also   seized   the
\nblood-stained shirt,  which  the  accused  was wearing, under Form 95.  He was
\nbrought to the police station and later sent to Court for remand.  The officer
\nissued a requisition to the learned Magistrate to record the statement of  the
\nwitnesses under  Section  164 Cr.P.C.  He also sent a requisition to the Court
\nto forward the material objects for analysis.  The  clothes  of  the  deceased
\nproduced by the Constable, who was present at the time of inquest, were seized
\nunder Form  95  and further investigation was taken up by P.W.15.  P.W.1 5, on
\ntaking up investigation on 25.6.1996,  examined  the  photographer  and  other
\nPolice Constables  as well as P.Ws.7 and 9, the two doctors.  The final report
\nwas filed against  the  accused  after  the  completion  of  investigation  on
\n4.8.1996.\n<\/p>\n
        7.  The  accused  was  questioned under Section 313 of the Cr.P.C.  on
\nthe incriminating  circumstances.      He   denied   all   the   incriminating
\ncircumstances.   He  did  not  examine any defence witness on his side; but he
\nclaimed that a false case had been foisted upon him.\n<\/p>\n
        8.  The prosecution, to establish the cause of the death of Balajothi,
\nexamined P.W.7, the doctor, who conducted autopsy.  P.W.7,  in  his  evidence,
\nstated  that  he found as many as seven injuries and that he noted them in the
\npost-mortem certificate, Ex.P.7.  He has stated that injury Nos.4  and  5  are
\nfatal  in  nature  and  that injury Nos.2 and 7 are sufficient in the ordinary
\ncourse of nature to cause death.   On  the  medical  evidence,  we  hold  that
\nBalajothi died on account of homicidal violence.\n<\/p>\n
        9.   P.W.1,  the brother of the deceased, and P.W.2, a person, who was
\nrunning a tea stall near the scene of occurrence, were examined  to  establish
\nthat the  accused  inflicted  the  fatal  injuries on the deceased.  It is the
\nevidence of P.W.1 that the deceased,  Balajothi,  who  was  attending  school,
\ndeveloped  friendship  with  the  accused,  which was not to the liking of the
\nelders and therefore, she was advised not to continue her friendship with  the
\naccused.   He  has  further  stated  that in spite of the advice, the deceased
\ncontinued to have her friendship with  the  accused  and  therefore,  she  was
\nprevented  from  going to school and that the elders have also started looking
\nfor a bridegroom so that the deceased could be given in marriage and according
\nto him, even after the deceased was prevented from going to  the  school,  the
\naccused was  in the habit of visiting his siste r and talking with her.  P.W.1
\nhas further stated that  he  has  advised  his  sister  not  to  continue  her
\nfriendship  with  the  accused  and that the marriage of the deceased was also
\nsettled and invitation cards were printed.  According to him, on the  date  of
\nincident,  his  parents  were  away in connection with the distribution of the
\ninvitation cards and that while he was standing in front of the  tea  shop  of
\nP.W.2  discussing  about the impending marriage, the accused reached the place
\nand cut the deceased, who was sitting on the door step indiscriminately.   The
\nevidence of  P.    W.1  is  fully  supported by P.W.2, an independent witness.
\nTheir evidence is also supported by P.W.3, who reached the scene of occurrence
\non hearing about the incident.  According to him, on hearing  the  information
\nabout  the attack on the deceased, he rushed to the scene and saw the deceased
\non the ground with bleeding injuries.  He has also stated that at the place he
\nnoticed P.Ws.1, 2 and others standing and that according to him, he stopped  a
\ntempo  van,  which  was passing by that side, in which the deceased was placed
\nand that the deceased was  taken  and  produced  before  P.W.9,  the  Casualty
\nMedical Officer,  Government  Mohan  Kumaramangalam Hospital.  The evidence of
\nP.Ws.1 and 2, supported by P.W.3, is also corroborated by P.W.9,  the  doctor,
\nbefore  whom the injured was produced at 11.30 a.m., that is, within two hours
\nof the incident.  On going through the evidence of P.Ws.1, 2 and 3, we find no
\nmaterial in favour of the accused to hold that the  deceased  did  not  suffer
\ninjuries at  the  hands  of  the accused.  The occurrence had taken place in a
\nbroad day light and P.Ws.1 and 2 are natural witnesses, since  the  occurrence
\nhad taken place at the door steps of the house of P.W.1 and P.W.2 was having a
\ntea stall near the said house at a distance of 15 feet.  As we stated earlier,
\ntheir evidence  is  also  supported  by P.W.3 and P.W.9, the doctor.  When the
\ndoctor questioned as to how the deceased suffered injuries,  he  was  informed
\nthat she was cut by a known person.  The said statement given to the doctor at
\n11.30  a.m.,  therefore, indicates that the witnesses knew the identity of the
\nassailant and the doctor was accordingly informed.   The  complaint  was  also
\ngiven at  Mallur  Police  Station by P.W.1 at 12.30 p.m.  and the same reached
\nthe hands of the Magistrate by 2.30 p.m.  There is  no  delay  in  laying  the
\ncomplaint and in the complaint, which was given at the earliest point of time,
\nthe  name  of the accused is found mentioned as the assailant of the deceased.
\nWe accept the prosecution version and hold that the deceased was  attacked  by
\nthe accused  and  as  a  result  of  the  said  attack the deceased died.  We,
\ntherefore, confirm his conviction.\n<\/p>\n
        10.   The  learned  counsel  appearing  for  the  appellant\/   accused
\nstrenuously  contends  that  even  if  the  Court finds the accused guilty, he
\ncannot be sent to jail and it is his further submission that the  trial  Court
\nwas  not  justified  in sending the accused to jail and that according to him,
\nthe accused should have been sent to a Special Home in terms of Section  21(d)
\nof the  Juvenile  Justice  Act,  1986.    The learned counsel submits that the
\nevidence on record indicate that on the date of incident the accused  has  not
\ncompleted  16  years  of age and therefore, the trial Court ought to have sent
\nhim to Special Home, instead of sending him to jail.\n<\/p>\n
        11.  We  have  heard  the  learned  Public  Prosecutor  on  the  above
\ncontentions and  perused  the  evidence.    P.W.7,  the  doctor, who conducted
\nautopsy, examined the accused, on being referred by Judicial Magistrate  No.1,
\nSalem,  to  ascertain  his  age,  though  there  is  no  evidence  as  to  the
\ncircumstances under which the Judicial Magistrate referred the accused to  the
\ndoctor for fixing the age.  The evidence indicates that on being referred, the
\naccused  was  examined  by  him  on 22.7.1996 and that X-Rays were also taken.
\nAccording to him, he gave Ex.P.8,  certificate,  with  his  opinion  that  the
\ninjured is   aged   about  17  years.    He  was  cross-examined  and  in  the
\ncross-examination, he has stated that it is  possible  that  on  the  date  of
\nexamination of the accused, he would have been running 16 years.  The evidence
\nof P.W.7,  therefore, is not definite as to the age of the accused.  Though in
\nchiefexamination he has stated that the accused would have completed 16  years
\nand  accordingly  he issued the certificate, Ex.P.8, with his opinion that the
\naccused  was  running  17,  he  went  back  on  the  answer   given   in   the
\nchief-examination  and stated that it is possible that the accused should have
\nbeen running 16.  The evidence let in by the prosecution, therefore, does  not
\nconclusively  establish  that the accused has completed 16 years of age on the
\ndate of incident.\n<\/p>\n
        12.  It is to be remembered at  this  stage  that  though  the  doctor
\nclaimed  that  the accused was examined by a Radiologist, the said Radiologist
\nwas not examined, though the X-Rays were marked as M.O.10 series.  The  report
\nof  the  Radiologist  was  also  not  produced before Court and in view of the
\nvacillating answer of the doctor, it is difficult for the Court to come  to  a
\ndefinite conclusion that the accused has completed 16 years of age on the date
\nof incident.\n<\/p>\n
        13.  In  A.I.R.1982  S.C.Pg.1297  (Jaya  Mala  Vs.    Home  Secretary,
\nGovernment of Jammu and Kashmir & Others) the Supreme  Court  was  considering
\nthe  evidentiary value of the evidence of the Doctor as to the age of a person
\nbased on radiological test.  The detenu in that case came to  be  detained  on
\n18.10.1981 and  the  expert’s  report  was dated 03.05.19 82.  The case of the
\ndetenu was that, she was a minor aged about 17 years at the time of arrest and
\ndetention and it was contended that a minor  cannot  be  detained.    In  that
\ncontext only, the Supreme Court held as follows:\n<\/p>\n
        “It  is  notorious and one can take judicial notice that the margin of
\nerror in age ascertained by radiological examination is two  years  on  either
\nside.” (Emphasis supplied)<\/p>\n
        14.   A  Division  Bench  of this Court, in SHANMUGAM -vs- STATE (1984
\nL.W.  (Crl.) 12), after taking a bird’s eye view of the law on the subject and
\nafter referring to the judgment of the Supreme Court cited  supra,  held  that
\nthe  determination of age on the basis of radiological examination can only be
\nan  approximate  factor  and  it  cannot  be   taken   as   a   decisive   and
\nincontrovertible feature.    The  Division  Bench,  after  referring  to Modis
\nMedical Jurisprudence, observed that blind and mechanical view  regarding  the
\nage of a person cannot be adopted solely on the basis of the evidence afforded
\nby the radiological examination and Courts further take judicial notice of the
\nfact  that the evidence afforded by radiological examination, though may be an
\nuseful guiding factor  for  determining  the  age  of  a  person,  it  is  not
\nconclusive  and  incontrovertible  in  nature and it is subject to a margin of
\nerror.\n<\/p>\n
        15.  In RAMDEO CHAUHAN -vs- STATE OF ASSAM (2001 SUPREME  COURT  CASES
\n(Crl)  915,  the convicted accused was seeking review of it’s earlier judgment
\nagainst him confirming the death sentence  awarded  by  the  trial  court  and
\naffirmed by  the  High  Court.   In the review petition the accused took a new
\nplea stating that at the time of occurrence, he was aged below  16  years  and
\ntherefore he  should  have  been tried by a juvenile court alone.  The Supreme
\nCourt found that at all previous stages, the accused never raised a plea based
\non he being a juvenile on the relevant date.  In this judgment, the Apex Court
\nreferred to the margin of error on the fixation of age by radiologist, as held
\nin Jaya Mala’s Case and on facts in that case, found that the accused was  not
\na juvenile.    In  Paragraph  21  of  the  said judgment it is found stated as
\nfollows:\n<\/p>\n
        The aforesaid case (Jaya Mala’s case) is of no  help  to  the  accused
\ninasmuch  as in that case the court was dealing with the age of a detenu taken
\nin preventive custody and was not determining the extent  of  sentence  to  be
\nawarded upon  conviction of offence.  Otherwise also, even if the observations
\nmade in the aforesaid judgment are taken note of, it does not help the accused
\nin any case.  The Doctor has opined the age of the accused  to  be  admittedly
\nmore than  20 years and less than 25 years.  The statement of the Doctor is no
\nmore than an opinion, the court has to base  it’s  conclusions  upon  all  the
\nfacts and circumstances disclosed on examining of the physical features of the
\nperson  whose  age  is in question, in conjunction with such oral testimony as
\nmay be available.  An X-Ray ossification test may provide a  surer  basis  for
\ndetermining  the age of an individual than the opinion of a medical expert but
\nit can by no means be so infallible and accurate a test  as  to  indicate  the
\nexact date  of  birth  of  the  person concerned.  Too much reliance cannot be
\nplaced  upon  textbooks  on  medical  jurisprudence   and   toxicology   while
\ndetermining the  age  of  an  accused.    In  this  vast  country  with varied
\nlatitudes, heights, environment, vegetation and nutrition, height  and  weight
\ncannot be expected to be uniform.\n<\/p>\n
In  the  said  judgment, the Supreme Court also extracted the relevant passage
\nfrom Jhala & Raju’s Medical Jurisprudence and it is as follows:\n<\/p>\n
“If ossification test is done for a single bone the error  may  be  two  years
\neither way.   But if the test is done for multiple joints with overlapping age
\nof fusion the margin of error may  be  reduced.    Sometimes  this  margin  is
\nreduced to six months on either side.”\n<\/p>\n
        16.   There is yet another judgment of the Supreme Court reported in 2
\n002 (2) S.C.C.Pg.287 (Rajinder Chandra Vs.  State of Chattisgarh).    In  that
\ncase  the accused contented that on the date of his arrest on 2 7.02.1997, for
\nthe offence of murder, he was a  juvenile  below  the  age  of  16  years  and
\ntherefore entitled  to  the  benefit  of  the  Juvenile Justice Act 1986.  The
\nlearned Magistrate in the Court of Sessions found that the accused not to be a
\njuvenile.  The revision filed by the accused was allowed  by  the  High  Court
\nholding that  the  accused  was  a juvenile.  The father of the victim in that
\ncase was before the Supreme Court contending that the order of the High  Court
\nwas erroneous.    The Supreme Court while dealing with that situation, held as
\nfollows:\n<\/p>\n
        “5.  It is true that the age of the accused is just on the  border  of
\n16 years on the date of the offence and arrest, he was less than 16 years by a
\nfew months only.  In Arnit Das Vs.  State of Bihar this court has, on a review
\nof   judicial   opinion,   held  that  while  dealing  with  the  question  of
\ndetermination of the age of the accused for the purpose of finding out whether
\nhe is a juvenile or not, a hyper-technical  approach  should  not  be  adopted
\nwhile appreciating the evidence adduced on behalf of the accused in support of
\nthe  plea  that he was a juvenile and if two views may be possible on the said
\nevidence, the court should lean in favour of  holding  the  accused  to  be  a
\njuvenile in  borderline  cases.   The law so laid down by this court, squarely
\napplies to the facts of the present case.”\n<\/p>\n
        17.  Therefore, the law on the subject shows that if there is a  doubt
\nas  regards  the  age  of  the accused, the Court should lean in favour of the
\naccused.  The facts, which we have already extracted, s how  that  the  doctor
\nwas  not definite about the age of the accused, since in cross-examination, he
\nhas admitted that on the date of incident, the accused could have been running
\n16, which means that there is no conclusive  evidence  that  on  the  date  of
\noccurrence he has completed 16 years of age.  The accused was questioned under
\nSection 313 Cr.P.C.  on 9.10.1998 and he had given his age as 16 years on that
\nday.   If  so, on 20.6.1996, the date on which the occurrence had taken place,
\nhe should have been less than 16  years  of  age.    This,  coupled  with  the
\nadmission  of  the doctor in cross-examination that the accused was running 16
\nyears of age, if taken into consideration, then the accused is to  be  treated
\nonly as  a  juvenile on the date of occurrence.  On this established position,
\nthe Juvenile Justice Act, 1986 (hereinafter referred to as the Act) comes into
\noperation.  Under clause (d) of section 21, the court has the power to send  a
\nconvicted  juvenile  accused  to  a  special home in the case of a boy over 14
\nyears of age for a period of not less than 3 years.  Under the same clause, in
\nthe case of other juvenile, the period of detention in the special home  shall
\nbe in  force  until  he  ceases  to  be  a juvenile.  In this case there is no
\nmaterial to show that the accused is less than 14 years and  therefore  clause\n<\/p>\n
(i)  of clause (d) of section 21 of the Act would stand attracted, which means
\nthat, he shall be detained for a period not less than three years.  Under  the
\nsecond  proviso to sub clause (d) to section 21 of the Act, the juvenile court
\nhas the power, for reasons to be recorded, to extend the period of  such  stay
\nbut  in  no  case  the  period  of  stay shall extend beyond the time when the
\njuvenile attains the age of 18 years in the case of a boy.  Under this  second
\nproviso,  the court’s power to extend the period of detention of a juvenile in
\nthe special home is limited upto the age of 18 years in the case of a boy.  In
\nthis case admittedly the juvenile accused has passed the age of 18  years  and
\ntherefore he cannot be detained even in the special prison as on date.\n<\/p>\n
        18.  In KARUPPAYEE -vs- STATE (1997 CRL.L.J.1627), a Division Bench of
\nthis  Court, while considering a similar piquant situation held that the Court
\ncannot direct a juvenile to return to the jail after  serving  the  period  of
\ndetention  in Borstal School and the only course left is to release him though
\nhe is convicted for the offence with which he was charged.  This view  of  the
\nDivision  Bench  found  approval  with  the Supreme Court in PRADEEP KUMAR -vs
\nSTATE OF U.P.  (1995 SUPP.  (4) SUPREME COURT CASES 419.\n<\/p>\n
        19.  On the discussion made above, while we confirm the conviction  of
\nthe  accused,  we direct his release from the prison and we are also unable to
\nsend him to Special Home as he has completed 18 years as on today.  The appeal
\nis, therefore, disposed off on the lines indicated above.  The  accused  shall
\nbe released forthwith from the prison.\n<\/p>\n
Index:Yes
\nWebsite\/Yes<\/p>\n
bs\/<\/p>\n
To,<\/p>\n
1.The I Additional Sessions Judge, Salem.\n<\/p>\n
2.-do- through the Principal Sessions Judge, Salem.\n<\/p>\n
3.The Inspector of Police, Kondalampatti Police Station, Salem District.\n<\/p>\n
4.The Superintendent, Central Prison, Coimbatore.\n<\/p>\n
5.The Collector, Salem District.\n<\/p>\n
6.The Director General of Police, Madras.\n<\/p>\n
7.The Public Prosecutor, High Court, Madras.\n<\/p><\/p>\n","protected":false},"excerpt":{"rendered":"
Madras High Court Chandran Alias Kuttipayan vs State Rep. By on 27 January, 2003 IN THE HIGH COURT OF JUDICATURE AT MADRAS DATED: 27\/01\/2003 CORAM THE HONOURABLE MR JUSTICE N. DHINAKAR and THE HONOURABLE MR JUSTICE R.BALASUBRAMANIAN Criminal Appeal No.165 of 1999 Chandran alias Kuttipayan … Appellant. -Vs- State rep. by Inspector of Police, Kondalampatti, […]<\/p>\n","protected":false},"author":1,"featured_media":0,"comment_status":"open","ping_status":"open","sticky":false,"template":"","format":"standard","meta":{"_lmt_disableupdate":"","_lmt_disable":"","_jetpack_memberships_contains_paid_content":false,"footnotes":""},"categories":[8,13],"tags":[],"class_list":["post-64956","post","type-post","status-publish","format-standard","hentry","category-high-court","category-madras-high-court"],"yoast_head":"\nChandran Alias Kuttipayan vs State Rep. 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